Flanagan v. Marriott International, Inc., et al.

Filing 29

Judge George A. OToole, Jr: OPINION AND ORDER entered granting 14 Motion to Change Venue to the Western District of Texas (Danieli, Chris) [Transferred from Massachusetts on 5/24/2013.]

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-12046-GAO
DONALD B. FLANAGAN, JR.,
Plaintiff,
v.
MARRIOTT HOTEL SERVICES, INC., JOHN DOE 1,
JOHN DOE 2, JOHN DOE 3, and JOHN DOE 4,
Defendants.
OPINION AND ORDER
May 23, 2013
O’TOOLE, D.J.
This is a personal injury case arising from events that occurred in November 2010 at the
Marriott Riverwalk Hotel in San Antonio, Texas. The defendant Marriott Hotel Services, Inc.,
(“Marriott”) has moved to transfer the case to the Western District of Texas pursuant to 28
U.S.C. § 1404(a).
A district court has the authority to “transfer any civil action to any other district where it
may have been brought ‘[f]or the convenience of parties and witnesses, in the interest of
justice.’” Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir. 2000) (quoting 28 U.S.C. §
1404(a)). The plaintiff concedes that venue would be proper in the Western District of Texas, as
it is the “judicial district in which a substantial part of the events . . . giving rise to the claim
occurred . . . .” 12 U.S.C. § 1391(b)(2).
The plaintiff’s choice of forum is entitled to a “strong presumption.” Coady, 223 F.3d at
11. However, Marriott has convincingly argued that the circumstances support transfer
notwithstanding that presumption. First, this district’s connection to the dispute is limited to the
facts that the plaintiff lives here and has hired Massachusetts counsel. In contrast, the events at

issue in this action occurred entirely in the Western District of Texas, and most of the relevant
evidence is likely located there.
In particular, the convenience of the witnesses warrants transfer. When considering this
factor, a court considers “the number of potential witnesses located in both the transferor and the
transferee district, the nature and quality of their testimony, and whether the witnesses can be
compelled to testify.” Boateng v. Gen. Dynamics Corp., 460 F. Supp. 2d 270, 275 (D. Mass.
2006) (citing Princess House, Inc. v. Lindsey, 136 F.R.D. 16, 18 (D. Mass. 1991)). Here Marriott
has identified eleven potential witnesses, all of whom reside in Texas. According to Marriott’s
representation, all eleven witnesses – three police officers, six Marriott employees, and two
Marriott guests – will offer evidence as percipient witnesses to the events at issue. All eleven
witnesses are beyond this Court’s subpoena power. Six are Marriott employees, and as to them
Marriott could probably produce their appearance at a trial in this district. However, the
remaining five cannot be compelled to testify here, and presumably during discovery they will
have to be deposed in Texas. Moreover, if the trial were to be held here, their testimony would
likely be presented by deposition, rather than live testimony, which would be possible in Texas
and which is preferable in the interest of justice.
For these reasons, transfer to the Western District of Texas would fulfill the purpose of
28 U.S.C. § 1404(a), which is “to prevent the waste of time, energy and money and to protect
litigants, witnesses and the public against unnecessary inconvenience and expense.” Van Dusen
v. Barrack, 376 U.S. 612, 616 (1964) (internal quotations omitted). Accordingly, Marriott’s
Motion (dkt. no. 14) is GRANTED. This case shall be transferred to the Western District of
Texas pursuant to 28 U.S.C. § 1404(a).
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

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