Smellie v. Marriott International, Inc. et al
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 11/13/2023. (dass, Deputy Clerk) [Transferred from Maryland on 11/13/2023.]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. 8:23-cv-02121-PX
MARRIOTT INTERNATIONAL, INC., et al., *
Pending in this employment discrimination lawsuit is Defendants Marriott International,
Inc., Marriott International Administrative Services, Inc., and Starwood Hotels & Resorts
Worldwide, LLC’s (hereinafter “Marriot”) motion to transfer venue. ECF No. 15. The matter is
fully briefed, and no hearing is necessary. See Loc. R. 105.6. For the following reasons, the
motion is GRANTED.
Plaintiff Taisha-Monet Smellie is an African American woman who resides in Broward
County, Florida. ECF No. 1 ¶¶ 1, 5. Marriott is in international hotel chain with its principal
offices in Bethesda, Maryland. Id. ¶ 2. In 2018, Smellie began working for Marriott at its “W
Hotel” property in Fort Lauderdale, Florida. Id. ¶ 6. About a year later, Smellie became the
Front Desk Supervisor for the “W Austin” in Austin, Texas. Id. ¶ 7. While Smellie worked for
Marriott, she received favorable feedback from colleagues and hotel guests about her
performance. Id. ¶ 8.
On July 23, 2019, Smellie and her mother stayed at the Residence Inn in Plantation,
Florida using Smellie’s employee discount.1 Id. ¶ 14. During their stay, Smellie and a front desk
Marriott owns Residence Inns. ECF No. 1 ¶ 13.
employee exchanged heated words regarding a takeout food order that had been mistakenly
delivered to the wrong room. Id. ¶¶ 14–15. Hotel management became involved. Id. ¶ 16.
Ultimately, hotel management told Smellie’s mother that she was no longer welcome on hotel
property. Id. ¶¶ 17, 20. Smellie and her mother were locked out of their room, prompting
Smellie to call the police who prepared a report of the incident. Id. ¶¶ 20–21.
Thereafter, Smellie took medical leave from her job between July 24 until July 27, 2019,
and returned to the W Austin on the 28th. Id. ¶¶ 24–25. On the day of her return, Smellie was
escorted to the human resources office and pressed to admit in writing that she had threatened to
kick down the door of another hotel guest. Id. ¶¶ 26–27. Smellie refused, and so she was
suspended for three days. Id. ¶ 28. That same day, Smellie also requested to take intermittent
Family and Medical Leave Act (“FMLA”) leave which was denied. Id. ¶ 31. Smellie next
reported to human resources that she believed she had been unfairly treated on account of her
race, and that the denial of her FMLA leave was retaliatory. Id. ¶¶ 29–31, 34.
On August 5, 2019, Marriott fired Smellie. Id. ¶ 35. Marriott’s stated grounds for her
termination was that Smellie had threatened to kick down a guest’s door, although later Marriott
reported that it had terminated Smellie for a longer pattern of nonspecific “inappropriate
behavior.” Id. ¶¶ 36, 38–39. On August 4, 2023, Smellie sued Marriott for race discrimination
in violation of 42 U.S.C. § 1981, arising from her abrupt termination and retaliation for having
complained about race discrimination. Id. ¶¶ 45–47.
Marriott now moves to transfer this case to the United States District Court for the
Western District of Texas, arguing that the transferee court provides a more convenient forum
for the witnesses, and because documentary evidence is located in Marriott’s Texas office. ECF
No. 15-1 at 7–11. For the following reasons, the Court agrees with Marriott and will grant the
Standard of Review
28 U.S.C. § 1404(a) governs transfer motions and provides: “[f]or 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.” To prevail, the defendant “must show by a preponderance of
the evidence that the proposed transfer will better and more conveniently serve the interests of
the parties and witnesses and better promote the interests of justice.” Jones v. Koons Auto., Inc.,
752 F. Supp. 2d 670, 680–81 (D. Md. 2010) (quoting Helsel v. Tishman Realty & Constr. Co.,
198 F. Supp. 2d 710, 711 (D. Md. 2002) (internal quotation marks and citations omitted)). Mere
conclusory allegations of hardship will not suffice. Rather, the defendant must adduce evidence
which demonstrates “the hardships [it] would suffer if the case were heard in the plaintiff’s
chosen forum.” Dow v. Jones, 232 F. Supp. 2d 491, 499 (D. Md. 2002) (citing Helsel, 198 F.
Supp. 2d at 712).
As a threshold matter, the Court must first determine whether the action could have been
brought in the requested transferee district. D2L Ltd. v. Blackboard, Inc., 671 F. Supp. 2d 768,
778 (D. Md. 2009) (citation omitted). If yes, the Court next must accord proper weight to the
plaintiff’s choice of venue, but also balance that consideration alongside such factors as witness
convenience and access, convenience of the parties, and choosing the forum that best serves the
interest of justice. Lynch v. Vanderhoef Builders, 237 F. Supp. 2d 615, 617 (D. Md. 2002)
(citation omitted). Ultimately, the Court retains broad discretion when deciding the propriety of
transfer, id., undertaking “an individualized, case-by-case consideration of convenience and
fairness.” United States ex rel. Salomon v. Wolff, 268 F. Supp. 3d 770, 774 (D. Md. 2017)
(quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (citation omitted)).
The Court first turns to whether this action could have properly been brought in the
Western District of Texas. Venue is proper in “a judicial district in which any defendant resides,
if all defendants are residents of the State in which the district is located.” 28 U.S.C.
§ 1391(b)(1). A defendant corporation is “deemed to reside . . . in any judicial district in which
such defendant is subject to the court’s personal jurisdiction with respect to the civil action in
question.” ECF No. 15-1 at 6 (quoting 28 U.S.C. § 1391(c)(2)). Marriott is registered and
conducts business in Texas. Id. at 5; see Tex. Civ. Prac. & Rem. Code §§ 17.041, 17.042.
Accordingly, the transferee court has personal jurisdiction over Marriott, and so Marriott
“resides” in Texas. ECF No 15-1 at 5–6.2 Thus, this action could have been brought in the
The Court next turns to the remaining factors governing transfer.
Plaintiff’s Choice of Forum
Generally, a plaintiff’s choice of forum is accorded special consideration. CareFirst,
Inc. v. Taylor, 235 F. Supp. 3d 724, 733 (D. Md. 2017) (quoting Collins v. Straight, Inc., 748
F.2d 916, 921 (4th Cir. 1984) (citation omitted)). However, where the chosen venue is neither
the plaintiff’s “home,” nor is it where the “events giving rise to the litigation” occurred, the
significance of plaintiff’s choice understandably is diminished. D2L Ltd., 671 F. Supp. 2d at 779
Marriott also asserts that venue is proper because the Western District of Texas is “a judicial district in
which a substantial part of the events . . . giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2); see ECF No.
15-1 at 6. Smellie contests this point. ECF No. 18 at 11–12. But because venue is proper either where the
defendant resides in the transferee district or where the relevant events took place, the Court need not address
Smellie’s argument. See 28 U.S.C. § 1391(b).
(quoting Tse v. Apple Comput., Inc., No. L-05-2149, 2006 WL 2583608, at *2 (D. Md. Aug. 31,
Marriott contends, and Smellie does not dispute, that the events giving rise to her
termination did not take place in Maryland. ECF No. 15-1 at 7. Nor does Smellie live in, or
have any ties to, Maryland. Id. Conversely, the alleged discrimination and retaliation took place
while Smellie worked at the W Austin and involved several hotel employees who worked at the
property. ECF No. 1 ¶¶ 25–35. Based on this, the Court accords Smellie’s choice of forum
Convenience of Witnesses
The next consideration, witness convenience, is “[p]erhaps the most important factor” in
deciding the propriety of transfer. Cronos Containers, Ltd. v. Amazon Lines, Ltd., 121 F. Supp.
2d 461, 466 (D. Md. 2000). To prevail, the movant must demonstrate that witness convenience
supports transfer. Int’l Masonry Training & Educ. Found. v. Hawaii Masons’ Training Fund,
No. 3320-PX, 2019 WL 1492684, at *1 (D. Md. Apr. 3, 2019); see Brown v. Stallworth, 235 F.
Supp. 2d 453, 457 (D. Md. 2002) (“Counsel’s assertions of hardship, without affidavits from the
parties and/or witnesses who are purportedly going to be inconvenienced, is insufficient to
convince the court that venue should be changed.”) (quoting Helsel, 198 F. Supp. 2d at 712)
(citation omitted)). Of course, where no witnesses reside in the chosen forum, this showing need
not be as robust. Tse, 2006 WL 2583608, at *3–5 (finding that witness convenience weighed in
favor of transfer because even though defendant did not provide “detailed information about its
witnesses,” defendant’s witnesses resided in transferee state and no witnesses resided in
transferor state); see also MedServ Int’l, Inc. v. Rooney, No. AW-05-3173, 2006 WL 8457082, at
*3 (D. Md. Feb. 7, 2006) (“. . . the requirement that a party seeking transfer on the basis of
witness convenience identify the witnesses expected to testify at trial and state the nature of their
intended testimony is not always rigidly enforced.”). So long as Marriott demonstrates that most
fact witnesses reside in or near Texas, this factor will tip in its favor. See Tse, 2006 WL
2583608, at *3–5.
Marriott has demonstrated that no witness can call Maryland a convenient forum, but
many are at home in Texas. ECF No. 15-1 at 7. Two witnesses are currently employed at the W
Austin, so the transferee district will be far more convenient for them. ECF No. 21-2; see
Cronos Containers, 121 F. Supp. 2d at 466 (stating that “transfer clearly serves the convenience”
of witnesses because testimony will be presented by persons located in transferee district and
who have no connection to Maryland). For three other witnesses, their last known addresses are
either in Texas, or nearer to Texas than Maryland. ECF No. 21-2. Smellie, in response, merely
speculates that because Marriott is headquartered in Maryland, chances are that some witnesses
may hail from this district. ECF No. 18 at 13. But speculation is not proof, and Smellie has not
named one witness who works or lives in Maryland. See id.; Cronos Containers, 121 F. Supp.
2d at 466. Thus, witness convenience points in favor of transfer.
Convenience of the Parties
As to the convenience of the parties, Marriott convinces the Court that the factor weighs
in its favor for similar reasons. Marriott particularly highlights that many witnesses and
documents are located in Texas, not Maryland. ECF No. 15-1 at 7–8. By contrast, little, if any,
relevant evidence is situated in this district. Thus, Marriott rightly points out that forcing
Marriott to defend itself in Maryland cannot, in fairness, be justified.
In response, Smellie attempts to convince the Court that Maryland remains a more
convenient forum for her, but with little to back this contention up. ECF No. 18 at 9; ECF No.
18-1 at 5. Smellie asserts that she cannot afford to pay for her Maryland-based lawyer to travel
and stay in the Western District of Texas; yet she ignores that she will incur near identical
expenses to have her Texas-based lawyer try the case in Maryland. See ECF No. 21 at 3. This is
especially odd given that her Texas lawyer appears to play an active role in her representation.
Id.; ECF No. 13 (pro hac vice motion granted for Mr. Walsh); ECF Nos. 1, 18 (pleadings signed
by Mssrs. Ray and Walsh). Thus, this added “expense” argument does not square with the
record. Cf. Helsel, 198 F. Supp. 2d. at 712 (considering plaintiff’s assertion that litigation costs
in transferee district “would be a severe financial burden” when deciding that balance of factors
cuts against transferring venue).
Nor can Smellie persuasively contend that because Maryland is “closer” to her home in
Florida than Texas, she is materially prejudiced by transfer. Both courthouses are over 1,000
miles away from Smellie’s residence. See ECF No. 18 at 9 (stating that Smellie’s home in
Florida is 15 hours or 1,050 from this district and 19 hours or 1,382 miles from the Western
District of Texas). Trial in either place will, therefore, visit a similar burden on her regardless.
See id. This factor, too, cuts in favor of transfer.
Interests of Justice
Finally, the Court turns to the amorphous “interest of justice” factor, which encompasses
all relevant considerations apart from witness and party convenience. See Cross v. Fleet Reserve
Ass’n Pension Plan, 383 F. Supp. 2d 852, 857 (D. Md. 2005) (citation omitted); D2L Ltd., 671 F.
Supp. 2d at 783 (citation omitted) (same). Relevant considerations include “relative ease of
access to different sources of proof”; “availability of compulsory process for attendance of
unwilling witnesses”; local interests in favor of resolving issues where they occurred; and the
courts’ respective docket congestion. Gilbert v. Freshbikes, LLC, 32 F. Supp. 3d 594, 607 (D.
Md. 2014); Brown, 235 F. Supp. 2d at 456.
On each of these considerations, Marriott makes the better case. First, Marriott points out
that many of the witnesses are beyond this Court’s compulsory process, but they would be within
the subpoena power of the transferee court. ECF No 15-1 at 10; ECF No. 21 at 5; see Fed. R.
Civ. P. 45(c)(1)(A) (limiting subpoena power for trial witness to 100 miles). Marriott separately
highlights that because the “vast majority” of the alleged conduct occurred in Texas, the
transferee district maintains a comparatively keener interest in adjudicating the dispute. ECF
No. 15-1 at 9. Lastly, Marriott has adduced some evidence that, on average, cases are tried more
quickly in the transferee district than in this district. Id. at 10 (“Federal Court Management
Statistics indicate that as of March 31, 2023, the median amount of time from filing to trial in
civil cases in this Court was 38.8 months, whereas in the U.S. District Court for the Western
District of Texas . . . was 28.2 months.”).
Smellie, in response, does not meaningfully contest that trial witnesses can be compelled
in the transferee district but not in this forum. Rather, she argues that compulsory process does
not matter because the Marriott employees will likely appear voluntarily as part of their
employment. ECF No. 18 at 12. Smellie also stresses that she is willing to conduct remote or
virtual depositions if the case remains here. Id. at 10; ECF No. 18-1 at 5. Smellie’s response,
however, does little to undercut Marriott’s legitimate concerns regarding compulsory process.
Smellie also pushes back on the notion that the case will be tried more quickly in the
transferee forum. ECF No. 18 at 15. But in the end, docket congestion should “receive minor
consideration and . . . cannot be the primary reason for retaining venue.” Weathersby-Bell v.
Washington Metro. Area Transit Auth., No. GJH-19-3474, 2020 WL 4501485, at *5 (D. Md.
Aug. 4, 2020).
On balance, the Court is persuaded that the interests of justice tilt in favor of transfer. It
is beyond dispute that for the most part, the transferee district retains the power to compel
anticipated witnesses to testify where this Court has no similar authority. See Fed. R. Civ. P.
45(c)(1). It is also beyond dispute that much of the alleged wrongful conduct took place in
Texas, and so the transferee district retains a greater interest in resolving the matter than does
this forum. See ECF No. 15-1 at 9; ECF No. 1 ¶¶ 25–35. Thus, when considering this and all
other factors, the Court concludes that transfer is warranted.
The motion is granted. A separate Order follows.
November 13, 2023
United States District Judge
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