Cortez v. Brad Drake Construction LLC

Filing 17

ORDER GRANTING IN PART 5 Motion to Dismiss, IT IS FURTHER ORDERED that the case SHALL be TRANSFERRED to the United States District Court for the Western District of Texas, San Antonio Division. Signed by Judge Kathleen Cardone. (vm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
RICARDO CORTEZ,
Plaintiff,
v.
BRAD DRAKE CONSTRUCTION, LLC
and WAL-MART STORES TEXAS,
LLC,
Defendants.

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EP-15-CV-346-KC

ORDER
On this day, the Court considered Defendant Brad Drake Construction, LLC’s (“Brad Drake
LLC”) First Amended Motion to Dismiss and/or to Transfer Venue (“Amended Motion to Dismiss
and/or Transfer”), ECF No. 5. For the reasons set forth herein, the Amended Motion to Dismiss
and/or Transfer is GRANTED in part.
I.

BACKGROUND
The following background information is derived from Plaintiff’s Original Petition and

Request for Disclosure (“Complaint”), see Brad Drake LLC’s Notice of Removal Ex. A, ECF No. 11, and the undisputed facts as found in the parties’ pleadings in support of and opposition to transfer
of venue.
On October 8, 2015, Plaintiff, a resident of El Paso, Texas, filed suit in state court against
Brad Drake LLC and Wal-Mart Stores Texas, LLC (“Wal-Mart”), alleging racial discrimination and
retaliation in the workplace in violation of 42 U.S.C. § 1981. See Compl. ¶¶ 2, 29-30. Brad Drake
LLC removed the case from state court to this Court on November 20, 2015. See Brad Drake LLC’s
Notice of Removal, ECF No. 1.

Plaintiff asserts that Brad Drake LLC hired him in El Paso, Texas. Pl.’s Resp. to Def. Brad
Drake LLC’s First Am. Mot. to Dismiss and/or Transfer Venue (“Response”) 4, ECF No. 7. Plaintiff
alleges that various discriminatory acts occurred during his employment in Big Spring, Texas, see
Compl. ¶¶ 9-16, and San Antonio, Texas, see id. ¶¶ 17-28. Plaintiff alleges that between December
30, 2014, and February 2, 2015, he worked in Big Spring, Texas, where (1) his supervisor made
racially discriminatory comments to him; (2) Brad Drake LLC received a complaint from Plaintiff
about the supervisor; and (3) the supervisor informed Plaintiff that he would be assigned to a job site
in San Antonio. See id. ¶¶ 11-16. Plaintiff further alleges that he worked at the San Antonio job site
between February 5, 2015, and February 20, 2015, where: (1) his hours were drastically reduced;
(2) Brad Drake LLC deducted the time taken for lunch from his and other Hispanic employees’ pay
but not from the pay of white employees; (3) Plaintiff questioned his new supervisor about the pay
discrepancy; (4) a Wal-Mart Job Site Inspector directed a racial epithet at Plaintiff; (5) Plaintiff made
as least one complaint to his new supervisor; and (6) Brad Drake LLC terminated Plaintiff. See id.
¶¶ 17-28.
Brad Drake LLC’s “principal place of business, from which most decisions related to
Plaintiff’s employment were made, is located in Paris, Texas.” Am. Mot. to Dismiss and/or Transfer
4-5. In addition, most of Brad Drake LLC’s witnesses to the alleged events are located in San
Antonio, Texas. Id.
II.

DISCUSSION
In its Amended Motion to Dismiss and/or Transfer, Brad Drake LLC asks the Court to

dismiss Plaintiff’s case under Rule 12(b)(3) for improper venue, or in the alternative, to transfer the
case to the United States District Court for the Western District of Texas, San Antonio Division,
pursuant to 28 U.S.C. § 1404(a). See id. at 3-5. Brad Drake LLC also asks the Court to dismiss
Plaintiff’s claims under Rule 12(b)(6) for failure to state a claim. Id. at 5-8.
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A.

Standard

A district court may order a change of venue and transfer any civil action to another district
or division where the action might have originally been brought if doing so would be convenient for
the parties and witnesses, and in the interest of justice. 28 U.S.C. § 1404(a). In determining whether
to transfer a case pursuant to § 1404(a), a district court must make two determinations. First, the
court must decide whether the district to which a transfer is sought would have been proper in the
first instance. In re Volkswagen of Am., Inc. (Volkswagen II), 545 F.3d 304, 312 (5th Cir. 2008) (en
banc); In re Volkswagen AG (Volkswagen I), 371 F.3d 201, 203 (5th Cir. 2004). Second, the court
must determine whether the transfer would be convenient for the parties and witnesses. Volkswagen
I, 371 F.3d at 203. The moving party bears the burden of demonstrating why the court should
transfer the case. Admiral Ins. Co. v. H & W Indus. Servs., Inc., No. EP-10-CV-273-KC, 2010 WL
3909274, at *2 (W.D. Tex. Sept. 30, 2010) (citing Dupre v. Spanier Marine Corp., 810 F. Supp. 823,
825 (S.D. Tex. 1993)).
B.

Analysis

Brad Drake LLC argues that the Court should transfer venue to the United States District
Court for the Western District of Texas, San Antonio Division, pursuant to 28 U.S.C. § 1404(a)
because most of Brad Drake LLC’s witnesses are located in San Antonio. Am. Mot. to Dismiss
and/or Transfer 4. Further, Brad Drake LLC argues for transfer because Brad Drake LLC’s
“principal place of business, from which most decisions related to Plaintiff’s employment were
made, is located in Paris, Texas, which is much closer to San Antonio than to El Paso.” Id. at 4-5.
In deciding whether to transfer, the Court must first determine whether venue in the San
Antonio Division would have been proper in the first instance. See Volkswagen II, 545 F.3d at 312.
Under 28 U.S.C. § 1391(b)(2), venue is proper in “a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). In determining
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where a substantial part of the events or omissions occurred, courts look “to the defendant’s conduct,
and where that conduct took place.” Bigham v. Envirocare of Utah, Inc., 123 F. Supp. 2d 1046, 1048
(S.D. Tex. 2000). The parties do not contest that venue is proper in the San Antonio Division. See
Am. Mot. to Dismiss and/or Transfer Venue 3-5; Resp. 5. Indeed, Plaintiff admits that “a
considerable amount of the events giving rise to [his] claims occurred in San Antonio, Texas and,
therefore, venue is also proper in the . . . San Antonio Division.” Resp. 5. While Plaintiff asserts that
one action took place in El Paso, Texas—Brad Drake LLC’s decision to hire Plaintiff—it is
undisputed that the alleged discriminatory acts occurred in Big Spring, Texas, and San Antonio,
Texas. See id. at 4; Compl. ¶¶ 10-28. Accordingly, because the San Antonio Division would have
been a proper venue in the first instance, the first prong of the § 1404(a) analysis for determining
whether to transfer the case is satisfied. See 28 U.S.C. § 1404(a); Volkswagen II, 545 F.3d at 312;
Volkswagen I, 371 F.3d at 203.
Next, the Court must determine whether a change of venue would be convenient for the
parties and witnesses, and in the interest of justice. 28 U.S.C. § 1404(a). Courts define
“convenience” by reference to both private and public interest factors. Volkswagen II, 545 F.3d at
315. Private factors include: “(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. (quoting Volkswagen I, 371 F.3d at 203). Public 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 [or in] the application of foreign law.”
Id. (alteration in original) (quoting Volkswagen I, 371 F.3d at 203). None of these factors are
dispositive. See Coleman v. Trican Well Serv., L.P., 89 F. Supp. 3d 876, 880 (W.D. Tex. 2015)
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(citing Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004)). Within this
framework, a plaintiff’s choice of forum is highly esteemed and may only be overcome when the
private and public factors clearly point towards hearing the case in the alternative forum. Vasquez v.
Bridgestone/Firestone, Inc., 325 F.3d 665, 672 (5th Cir. 2003); Schexnider v. McDermott Int’l, Inc.,
817 F.2d 1159, 1163 (5th Cir. 1987).
With respect to the private interest factors, Brad Drake LLC cites witness availability,
convenience of the parties, and accessibility and location of elements of proof as reasons supporting
transfer of the case to the San Antonio Division. See Am. Mot. to Dismiss and/or Transfer 5.
Indeed, Plaintiff does not dispute that most of Brad Drake LLC’s witnesses to the allegedly
discriminatory events are located in San Antonio, or that Brad Drake LLC’s “principal place of
business, from which most decisions related to Plaintiff’s employment were made, is located in Paris,
Texas.”1 Id. at 4-5; see Resp. 3-5. As explained above, Plaintiff concedes that “a considerable
amount of events giving rise to [his] claims occurred in San Antonio,” and that venue is proper in the
San Antonio Division. Resp. 5. In fact, only one action—Brad Drake LLC’s decision to hire
Plaintiff—took place in El Paso, while all of the allegedly discriminatory events took place in Big
Spring or San Antonio. See id. at 4; Compl. ¶¶ 10-28. Thus, most of the witnesses to the
discriminatory events, as well as other forms of proof, appear to be located in Big Spring, San
Antonio, and Paris, and not in El Paso. See Compl. ¶¶ 10-28; Am. Mot. to Dismiss and/or Transfer
4-5; Resp. 3-5. As the parties do not address, or provide specific facts relevant to, the final private
factor—“the availability of compulsory process to secure the attendance of witnesses”—the Court
does not weigh this factor in its decision regarding whether to transfer the case. See Volkswagen II,
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The Court takes judicial notice that the distance between Paris, Texas, and San Antonio, Texas, is less than the
distance between Paris, Texas, and El Paso, Texas. See Munson S.S. Lines v. Newman, 24 F.2d 416, 417 (5th Cir.
1928) (taking judicial notice of distance between two cities); Reservoir, Inc. v. Truesdell, 1 F. Supp. 3d 598, 610
n.15 (S.D. Tex. 2014) (taking judicial notice of geographic distance); United States v. Cardona, 524 F. Supp. 45, 47
(W.D. Tex. 1981) (same).
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545 F.3d at 315. Accordingly, three private factors—the “relative ease of access to sources of
proof,” “the cost of attendance for willing witnesses,” and other practical considerations that may
make “trial of a case easy, expeditious and inexpensive”—all weigh in favor of transferring the case
to the San Antonio Division. See id.
The parties do not address any of the public interest factors; however, the Court concludes
that at least one of these factors weighs in favor of transfer. The first factor—the relative congestion
of the courts—“is considered the ‘most speculative’ factor,” and the Court does not place any weight
on this consideration. Clayton Williams Energy, Inc. v. Pace Energy Solutions, Inc., CV No. 7:15cv-43-DAE, 2015 WL 2384600, at *5 (W.D. Tex. May 19, 2015) (quoting In re Genentech, 566 F.3d
1338, 1347 (Fed. Cir. 2009) (applying 5th Circuit law)).
The second factor—the “local interest in having localized interests decided at home”—
weighs slightly in favor of transfer to San Antonio, because all of the events giving rise to the alleged
discrimination took place in either San Antonio or Big Spring. See Compl. ¶¶ 9-28. Although
Plaintiff is a resident of El Paso, see Compl. ¶ 2, and Brad Drake LLC hired Plaintiff in El Paso, see
Resp. 4, none of the allegedly discriminatory acts occurred in El Paso. Thus, the second public
interest factor weighs in favor of transfer to the San Antonio Division because of the stronger “local
interest in having localized interests decided at home.” See Volkswagen I, 371 F.3d at 206
(concluding that localized interest factor weighed “heavily in favor of the Western District of Texas”
as opposed to the Eastern District, where plaintiffs and third-party defendants resided in the Western
District, the accident occurred in the Western District, and “the entirety of the witnesses for the thirdparty complaint [could] be located” in the Western District).
With respect to the third public interest factor, “the familiarity of the forum with the law that
will govern the case,” Volkswagen II, 545 F.3d at 315, the Court concludes that the El Paso Division
and the San Antonio division are equally capable of applying the relevant law. Accordingly, the
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third public factor bears no weight in the Court’s calculus. Finally, the Court concludes the fourth
factor— avoiding “unnecessary problems of conflict of laws” or of applying foreign law—is neutral
in determining whether to transfer the case to the San Antonio Division, see id.; indeed, the parties
have presented no facts that indicate that either venue would avoid unnecessary problems of conflict
of laws or of foreign law.
Accordingly, while the public interest factors weigh marginally in favor of transfer, three of
the private interest factors—witness availability, convenience of the parties, and accessibility and
location of elements of proof—weigh strongly in favor of transfer. Because the factors, in sum,
demonstrate that transfer to the San Antonio Division would be convenient for the parties and
witnesses, and in the interest of justice, the second prong of the § 1404(a) analysis is satisfied, and
clearly point towards hearing the case in San Antonio. See 28 U.S.C. § 1404(a); Volkswagen I, 371
F.3d at 203; Vasquez, 325 F.3d at 672.
Because the action might have originally been brought in the San Antonio Division, and
venue in the San Antonio Division is more convenient for the parties and witnesses, and in the
interest of justice, transfer of venue to the San Antonio Division is warranted. See 28 U.S.C.
§ 1404(a); Volkswagen II, 545 F.3d at 315 (“When the movant demonstrates that the transferee venue
is clearly more convenient, . . . it has shown good cause and the district court should therefore grant
the transfer.”). As the Court concludes that transfer of venue to the San Antonio Division is clearly
more convenient, it need not resolve whether dismissal is warranted under Rule 12(b)(3). Likewise,
the Court concludes that the transferee court is the appropriate court to decide whether dismissal is
warranted under Rule 12(b)(6). See, e.g., Mexico Foods, LLC v. Mi Rancho Meat Market, Civil
Action No. 3:14-CV-2760-D, 2015 WL 891666, at *1 n.2 (N.D. Tex. Mar. 3, 2015); Busch v.
Robertson, Civil Action No. 3:05-CV-2043-L, 2006 WL 1222031, at *7 (N.D. Tex. May 5, 2006).

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III.

CONCLUSION
For the reasons set forth above, Brad Drake LLC’s Amended Motion to Dismiss and/or

Transfer, ECF No. 5, is GRANTED in part, to the extent it seeks transfer of this case to the United
States District Court for the Western District of Texas, San Antonio Division.
IT IS FURTHER ORDERED that the case SHALL be TRANSFERRED to the United
States District Court for the Western District of Texas, San Antonio Division.
SO ORDERED.
SIGNED this 4th day of April, 2016.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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