Vasquez v. El Paso II Enterprises, LLC et al

Filing 12

ORDER DENYING 7 Motion to Transfer Case Signed by Judge Kathleen Cardone. (mc6)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ANGELINA VASQUEZ
Plaintiff
v.
EL PASO II ENTERPRISES, LLC
d/b/a OASIS NURSING &
REHABILITATION CENTER, and
CREATIVE SOLUTIONS IN
HEALTHCARE, INC.
Defendants.

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EP-12-CV-303-KC

ORDER
On this day, the Court considered Defendants’ “Opposed Motion to Transfer Venue, and
Subject Thereto, Original Answer” (“Motion”), ECF No. 7. For the reasons set forth herein, the
Motion is DENIED.
I.

BACKGROUND
Plaintiff Angelina Vasquez (“Plaintiff”), a resident of El Paso County, Texas, alleges that

she was injured in course and scope of her employment with Defendant El Paso II Enterprises,
LLC d/b/a Oasis Nursing & Rehabilitation Center (“Defendant Oasis”) on August 13, 2010. See
Compl. ¶¶ 1, 5. Plaintiff claims that the injury occurred at a facility owned and operated by
Defendant Oasis and Defendant Creative Solutions in Healthcare, Inc. (together “Defendants”) in
El Paso County, Texas. Pl.’s Resp. Opp’n Defs.’ Mot. Transfer Venue (“Response”) ¶ 3, ECF
No. 8. All treatment for this injury, Plaintiff alleges, occurred in El Paso County, Texas. Id. ¶

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5. Plaintiff also alleges that all her “medical providers, doctors, and custodian of records are
located in or around El Paso County, Texas.” Id.
At the time of her injury, according to Plaintiff, Defendants self-administered an
employee insurance policy. Compl. ¶ 7. Plaintiff alleges that this insurance policy is an aspect
of an employee benefit plan covered by the Employee Retirement Income Security Act of 1974
(“ERISA”). See id; App. A (“Plan”), ECF No. 7; 29 U.S.C. § 1002 (2012). Plaintiff alleges that
she was a participant in the Plan. See id. Next, Plaintiff alleges that she was denied benefits, by
Defendants, under the Plan for her injury. See id. ¶¶ 11-13. Finally, Plaintiff alleges that
Defendants retaliated against her and ultimately terminated her employment. See id. ¶¶ 14-15.
As a result of these events, Plaintiff filed suit in the United States District Court for the
Western District of Texas, El Paso Division, on August 2, 2012. See generally id. Plaintiff
brought claims, under ERISA, for discrimination, denial of benefits, breach of fiduciary duty,
and statutory violations. Id. ¶¶ 16-29. On September 11, 2012, Defendants moved to transfer
the venue of this case, pursuant to 28 U.S.C. § 1404(a), to the Northern District of Texas, Dallas
Division. See generally Defs.’ Opposed Mot. Transfer Venue, Subject, Original Answer
(“Motion”), ECF No. 7. Defendants argue that transfer is appropriate, primarily, because a
forum-selection clause in the Plan states that legal challenges to a denial of benefits “must be
brought in the United States District Court for the Northern District of Texas, Dallas Division.”
Id. ¶¶ 2-4; Plan 22. On September 17, 2012, Plaintiff responded in opposition to the motion to
transfer. See generally Resp. Plaintiff argues that the forum-selection clause is not binding and
violates public policy. Id. at 2-9. Defendants did not file a reply to this response.

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II.

DISCUSSION
A.

Standard

Section 1404(a) allows “[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.” 28
U.S.C. § 1404(a). However, a plaintiff’s selection of venue is entitled to deference. In re
Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (“Thus, when the transferee venue is
not clearly more convenient than the venue chosen by the plaintiff, the plaintiff’s choice should
be respected.”); Brock v. Baskin-Robbins USA Co., 113 F. Supp. 2d 1078, 1086 (E.D. Tex.
2000). When a party seeks to transfer venue, via § 1404(a), that party must show good cause.
Volkswagen, 545 F.3d at 315. To show good cause, the moving party must produce evidence
showing that a transfer of venue is “for the convenience of parties and witnesses, in the interest
of justice.” Id. (citing 28 U.S.C. § 1404(a)).
To show a transfer of venue is for the convenience of parties and witnesses and is in the
interest of justice, a court looks to private and public interest factors. See id. 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.”
Id. (internal quotation marks omitted). 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)

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the avoidance of unnecessary problems of conflict of laws or in the application of foreign law.”
Id. (internal quotation marks and alterations omitted).
The presence of a forum-selection clause, in a contract, is also considered in this analysis.
Recently, the United States Court of Appeals for the Fifth Circuit examined the weight of a
forum-selection clause in a § 1404(a) analysis. See In re Atl. Marine Constr. Co., ---F.3d----,
No. 12–50826, 2012 WL 5835832, at *3-5 (5th Cir. Nov.19, 2012). First, in Atlantic Marine, the
Fifth Circuit examined its previous holdings and concluded that § 1404(a), not § 1406(a) or
Federal Rule of Civil Procedure 12(b)(3), is the proper means of enforcing a forum-selection
clause that designates a specific federal forum. Id. at *2-3. Second, and of importance to this
case, the Fifth Circuit discussed whether the existence of a forum-selection clause shifts the
burden of demonstrating the propriety of transfer from the moving party to the non-moving
party. Id. at *3-4. The Fifth Circuit noted that it had never previously confronted the issue. Id.
at *4. Given this lack of prior guidance, the Fifth Circuit concluded that a district court did not
abuse its discretion by keeping the burden on the moving party, despite the existence of a forumselection clause. Id. Thus, the Fifth Circuit concluded that the district court was correct in
“incorporating the forum-selection clause into the private and public factor analysis . . . .” Id.
This Court is cognizant that prior to Atlantic Marine, some district courts held that the
presence of a forum-selection clause shifted the burden of demonstrating the propriety of transfer
from the moving party to the non-moving party. See, e.g., Zamora-Garcia v. Moore, M-05-331,
2006 WL 3341034, at *3 (S.D. Tex. Nov. 16, 2006) (surveying district courts in the Fifth Circuit
and holding that the burden does not shift). However, this Court follows the Fifth Circuit’s
guidance in Atlantic Marine.

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For reasons of precedent, public policy, and congressional intent, the Fifth Circuit held
that the presence of a forum-selection clause did not shift the burden of demonstrating the
propriety of transfer from the moving party to the non-moving party. See Atl. Marine, 2012 WL
5835832, at *4. First, the Fifth Circuit explained that a prior United States Supreme Court
decision did not hold that the existence of a forum-selection clause shifted the burden, but
“merely insisted that the forum-selection clause be ‘a significant factor that figures centrally in
the district court’s calculus.’” Id. (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988)). Second, the Fifth Circuit considered congressional intent and concluded that “[p]lacing
the burden on the moving party still allows the court to give the forum-selection clause ‘the
consideration for which Congress has provided . . . .’” Id. (citing Stewart, 487 U.S. at 31).
Third, the Fifth Circuit looked at the policy outcomes of its holding and noted that not shifting
the burden would not “disfavor forum-selection clause or allow litigants to easily circumvent
their contractually-chosen forum” because a forum selection clause is still a significant factor in
a § 1404(a) analysis. See id. Accordingly, this Court follows the Fifth Circuit’s guidance in
Atlantic Marine and does not shift burden of demonstrating the propriety of transfer from the
moving party to the non-moving party. As such, the burden, in this case, rests with Defendants.
B.

Analysis

Defendants’ primary argument for transfer is the existence of the forum-selection clause
in the Plan, which Defendants argue mandates transfer under § 1404(a). Mot. ¶¶ 2-4; see Plan
22. Defendants cite to a number of district court holding, prior to Atlantic Marine, for the
proposition that the existence of a valid forum-selection clause makes transfer “mandatory.”
See, e.g., id. ¶ 2 (citing Von Graffenreid v. Craig, 246 F. Supp. 2d 553, 560 (N.D. Tex. 2003)).

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But given the Fifth Circuit’s guidance in Atlantic Marine, that a forum-selection clause was just
one factor in a broader § 1404(a) analysis, this Court rejects Defendants’ argument that a valid
forum-selection clause mandates transfer.1 See 2012 WL 5835832, at *4; Stewart, 487 U.S. at 31
(noting that “a forum-selection clause, which represents the parties’ agreement as to the most
proper forum, should receive neither dispositive consideration . . . nor no consideration . . .”).
In the alternative, Defendants argue that this Court should look to “various private
[interest] factors” in determining whether transfer is appropriate under § 1404(a). See Mot. ¶¶
5-6. Defendants provide no facts in this case supporting transfer. Instead, Defendants cite to a
list of seven private interest factors, gleamed from the Von Graffenreid case, to be considered in
a § 1404(a) analysis.2 See id. ¶ 5 (citing Von Graffenreid, 246 F. Supp. 2d at 563). As noted
above, the Von Graffenreid case was decided by a district court in 2003. See generally 246 F.
Supp. 2d at 553. In 2008, the Fifth Circuit, en banc, clarified what private and public interest
factors a court should look to in a § 1404(a) analysis. Volkswagen, 545 F.3d at 315. These
factors are largely the same as the Von Graffenreid factors. Compare Volkswagen, 545 F.3d at
315, with Von Graffenreid, 246 F. Supp. 2d at 562-63. Cognizant that no set of factors is
“necessarily exhaustive or exclusive,” this Court follows the Fifth Circuit’s private and public
interest factors. See Volkswagen, 545 F.3d at 315. And this Court “incorporate[s] the forumselection clause into the private and public factor analysis . . . .” Atl. Marine, 2012 WL 5835832,
at *4 (approving of a district court doing the same).

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The Court makes no judgment as to whether the forum-selection clause in this case is valid.

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Plaintiff also cites to the same list of factors from Von Graffenreid. Resp. 9.

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1.

Sources of proof

The first private interest factor is “the relative ease of access to sources of proof.”
Volkswagen, 545 F.3d at 315. In this case, only Plaintiff has indicated where evidence may lie.
Specifically, Plaintiff notes that the injury and the medical treatment for the injury occurred in El
Paso County, Texas. Resp. ¶¶ 3, 5. Plaintiff also contends that witnesses to Plaintiff’s
termination and Defendants’ retaliation reside in El Paso County, Texas. Id. at 8. Defendants do
not argue otherwise. Therefore, because of the location of these sources of proof, this factor
weighs against transfer.
2.

Compulsory process

The second private interest factor is “the availability of compulsory process to secure the
attendance of witnesses.” Volkswagen, 545 F.3d at 315. As noted above, the only witnesses
identified reside in El Paso County, Texas. See Resp. 8. These witnesses appear to be non-party
witnesses. See id. 3 A federal court has absolute subpoena power—that is, to compel attendance
at deposition and trial—over non-party witnesses who reside in the same district as the court.
See Fed. R. Civ. P. 45(b)-(c); Volkswagen, 545 F.3d at 316; In re Hoffmann-La Roche Inc., 587
F.3d 1333, 1338 (Fed. Cir. 2009) (interpreting Volkswagen and defining absolute subpoena
power as the power to compel attendance at deposition and trial).
But a federal court may not have absolute subpoena power over non-party witnesses who
reside outside the same district as the court. Relevant to this case, a court must quash, subject to

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The Court is aware that more detailed information about the potential witnesses and their
locations is usually required. See, e.g., Copeland v. City of Killeen, A-10-CA-338-SS, 2010 WL
2732532, at *4 (W.D. Tex. July 8, 2010) (“However, because Plaintiff does not specifically name
any of the witnesses in question, or give any detail as to the content of their testimony, these
witnesses carry no weight in the Court's transfer analysis [of the compulsory process private
interest factor].”) But since Defendants have provided no evidence of any witnesses and their
locations, the Court finds the Plaintiff’s minimal evidence, of such, is persuasive.

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certain exceptions, a subpoena requiring a non-party witness to appear at a trial if the non-party
witness would have “to travel more than 100 miles from where that person resides, is employed,
or regularly transacts business in person . . . .” Fed. R. Civ. P. 45(c)(3)(B)(iii); see ICHL, LLC v.
NEC Corp. of Am., 5:08CV65, 2009 WL 1748573, at *8 (E.D. Tex. June 19, 2009) (“The nonparty witnesses located outside this district are outside the Eastern District’s subpoena power for
deposition under Fed. R. Civ. P. 45(c)(3)(A)(ii), and any trial subpoenas for these witnesses to
travel more than 100 miles would be subject to motions to quash under Fed. R. Civ. P.
45(c)(3).”) (internal quotation marks removed). Likewise, a federal court’s subpoena power to
compel a non-party witness to appear at a deposition is also geographically bounded. At a
maximum, it appears, a federal court in Texas can only compel a non-party witness to appear at a
deposition in a county is no more than 150 miles away from where the non-party witness resides.
See Portal Technologies LLC v. IAC/Interactivecorp, 2:11-CV-439-JRG-RSP, 2012 WL
3494826, at *2 n.1 (E.D. Tex. Aug. 15, 2012) (citing Tex. R. Civ. P. 176.3). But see Deep Nines,
Inc. v. McAfee, Inc., 9:09CV89, 2009 WL 3784372, at *4 (E.D. Tex. Nov. 10, 2009) (finding the
range to be 100 miles). Therefore, because Dallas County, Texas is over 500 miles away from El
Paso County, Texas and the non-party witnesses in this case, this Court has superior subpoena
power to secure the attendance of witnesses. See Fed. R. Civ. P. 45(b)-(c). Accordingly, this
factor also weighs against transfer.
3.

Cost of attendance

The third private interest factor is “the cost of attendance for willing witnesses.”
Volkswagen, 545 F.3d at 315. It appears the majority of witnesses in this case are located in El
Paso County, Texas. Defendants do not argue otherwise. Plaintiff notes that her medical

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providers are from El Paso County, Texas. Resp. 8. Likewise, Plaintiff alleges that witnesses to
the retaliation and termination are also located in El Paso County, Texas. Id. Plaintiff argues
that requiring these witnesses to travel to Dallas County, Texas “more than 500 miles away
would be unfair and inconvenient . . . .” Id. Defendants have presented no evidence about the
cost of producing their own witnesses. Given the Fifth Circuit’s guidance that travel over 100
miles is a burden to witnesses, this factor also weighs against transfer. See Volkswagen, 545
F.3d at 317.
4.

Other practical problems

The fourth private interest factor is “all other practical problems that make trial of a case
easy, expeditious and inexpensive.” Id. at 315. Neither party has presented evidence that makes
this factor relevant.4 Therefore, this factor weighs neither for nor against transfer. See Apparel
Prod. Services Inc. v. Transportes De Carga Fema, S.A. de C.V., 546 F. Supp. 2d 451, 454 (S.D.
Tex. 2008) (also finding this factor to be neutral when the parties failed to raise practical
problems relating to transfer).
5.

Court congestion

The first public interest factor is “the administrative difficulties flowing from court
congestion.” Id. According to the United States Courts’ Judicial Business Report, the median
time from filing to disposition in a civil case in the Northern District of Texas is 6.6 months.
Administrative Office of the United States Courts, 2011 Annual Report of the Director: Judicial
Business of the United States Courts, Washington, D.C.: 2012 at 156. In the Western District of
Texas the median time is 7.4 months. Id. This Court finds this difference of less than one month

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Defendants do note that transfer of this case would not result in a significant delay because
discovery has not yet started. Mot. ¶ 7. However, Defendants do not provide any evidence about
the practicality of trial in either venue.

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in disposition times to be negligible. See Order, J-Crew Management, Inc. v. Atlantic Marine
Construction Company, Inc. et al, 1:12-cv-00228-LY (W.D. Tex. Aug. 6, 2012) (finding a
difference of 2.3 months to also be negligible). Therefore, this factor weighs neither for nor
against transfer.
6.

Local interests

The second public interest factor is “the local interest in having localized interests
decided at home.” See Volkswagen, 545 F.3d at 315. A local interest is demonstrated by a
relevant factual connection between the events and the venue. See id. at 317-18. Here, there is a
strong factual connection between the events in this case and El Paso County, Texas. First,
Defendants operate businesses in El Paso County, Texas. Compl. ¶¶ 2-3; Mot. ¶¶ 12-13.
Second, Plaintiff alleges that her injury and medical treatment occurred in El Paso County,
Texas. Resp. ¶¶ 3, 5. Third, Plaintiff alleges the retaliation also occurred in El Paso County,
Texas. See Compl. ¶¶ 14-15. In juxtaposition, Defendants have provided no evidence of any
connection with Dallas County, Texas. Therefore, this factor also weighs against transfer.
7.

Familiarity with law

The third public interest factor is “the familiarity of the forum with the law that will
govern the case.” See Volkswagen, 545 F.3d at 315. Both federal courts, in this case, are equally
capable of applying federal ERISA law. Therefore, this factor weighs neither for nor against
transfer.
8.

Conflicts or foreign law

The fourth public interest factor is “the avoidance of unnecessary problems of conflict of
laws or in the application of foreign law.” Id. (internal alterations omitted). This factor is not

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applicable in this case since there is no known conflict of laws or foreign law issue in this case.
Therefore, this factor weighs neither for nor against transfer.
9.

Forum-selection clause

Next, the court examines the forum-selection clause as both a public and private interest
factor. See Volkswagen, 545 F.3d at 315 (noting that no set of factors is “necessarily exhaustive
or exclusive”). A forum-selection clause is an important tool in a business relationship. See M/S
Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13-14 (1972) (describing a forum-selection clause
as an “indispensable element in international trade, commerce, and contracting”). In this case,
there may have been compelling business reasons for selecting Dallas County, Texas as the
designate forum. See Youngblood v. JTH Tax Services, Inc., SA:06-CA380XR, 2006 WL
1984656, at *5 (W.D. Tex. July 17, 2006) (noting the existence of affidavit testimony explaining
the rationale for a forum-selection clause). However, Defendants have not articulated any of
these reasons.
The Court does not address Plaintiff’s argument that this forum-selection is overreaching
because it is not necessary to do so. See Resp. 6-8. Even if the forum-selection clause were
valid, it would not overcome the other private and public factors in this case: the events,
witnesses, and evidence in this case are in El Paso County, Texas, over 500 miles from Dallas
County, Texas. See Atl. Marine, 2012 WL 5835832, at *4; Stewart, 487 U.S. at 31 (concluding
that a forum-selection clause “should receive neither dispositive consideration . . . nor no
consideration . . .”); Zamora-Garcia, 2006 WL 3341034, at *7-8 (denying a motion to transfer
despite the existence of a forum-selection clause). Defendants, who have the burden of
demonstrating that transfer is proper, have produced no countervailing evidence as to why Dallas

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County, Texas is a more appropriate forum. See Volkswagen, 545 F.3d at 315. In sum, the
private and public interest factors weigh against transfer. Accordingly, Defendants have not met
their heavy burden of showing that transfer is “for the convenience of parties and witnesses, in
the interest of justice.” See 28 U.S.C. § 1404(a)).
Because the Court finds that transfer is not appropriate, it does not address Plaintiff’s
argument that ERISA’s statutory framework supersedes the forum-selection clause. See Resp. 24.
III.

CONCLUSION
For the foregoing reasons, Defendants’ Motion, ECF No. 7, is DENIED.
SO ORDERED.

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SIGNED this 11th day of December, 2012.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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