McCloud v. McClinton Energy Group, L.L.C. et al
ORDER GRANTING 7 Motion to Transfer Case to the Midland Division. Signed by Judge Xavier Rodriguez. (aej)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
on behalf of himself and all others similarly §
MCLINTON ENERGY GROUP, L.L.C. and
JAYCAR ENERGY GROUP, L.L.C. d/b/a
JAYCAR FRAC PLUGS,
Civil Action No. 5:14-cv-620-XR
On this date, the Court considered Defendants’ opposed Motion to Transfer Venue
(Doc. No. 7) and the response and reply thereto. After careful consideration, the Court will
grant the motion to transfer.
Plaintiff, Laron McCloud on behalf of himself and all other similarly situated
individuals, filed this suit against Defendants, McClinton Energy Group, L.L.C. and its
subsidiary Jaycar Energy Group, L.L.C., in the San Antonio Division of the United States
District Court for the Western District of Texas. Plaintiff filed an opt-in consent for Robert
Rios along with the complaint. Plaintiffs allege violations of the Fair Labor Standards Act.
Specifically, they allege that Defendants required and/or permitted Plaintiff Laron McCloud
and other similarly situated employees to work in excess of forty hours per week but refused
to compensate them properly for such hours. Class members are Defendants’ salary-paid plug
technicians employed at any time during the three-year period immediately preceding the
filing of this suit.
Since the filing of the lawsuit, Matt Wilson, Chad Manning, and Jerry Brewer have
also opted in. McLoud and opt-in Plaintiff Matt Wilson are residents of Brownwood, Texas;
opt-in Plaintiff Robert Rios is a resident of Midland, Texas.
The Court is unaware of
Manning’s and Brewer’s residences. Defendants maintain their primary place of business in
Midland, Texas but also maintain operations throughout the United States. Defendants
to transfer venue to the Midland Division of the Western District.
Defendants move to transfer venue under 28 U.S.C.§ 1404(a) on the grounds that the
San Antonio Division has no connection to this case and that transfer to the Midland Division
would benefit the convenience of the parties and witnesses. Specifically, Defendants allege
that the Plaintiffs do not reside in San Antonio, that the Plaintiffs were never dispatched for
work to any counties within the San Antonio Division, that the Plaintiffs had daily interactions
with the Midland Division, that virtually all of the evidence is located in the Midland Division,
and that Plaintiffs would not suffer any prejudice by transfer to the Midland Division.
Defendants also assert that the San Antonio Division should not be burdened by a case to
which it has no connection, that the Midland Division has a significant interest in the parties to
the suit, and that it would be unfair to burden the San Antonio Division’s residents with this
In response to Defendants’ motion, Plaintiffs contend that the evidence can be easily
obtained in the San Antonio Division, either from Defendant’s nearby offices or electronically.
Plaintiffs further contend that Defendants have failed to identify the material witnesses who
are claimed to reside in the Midland Division, or alternatively, that these material witnesses
are presumably employed by Defendants and are under their control and will therefore appear
and give testimony wherever the case is pending. Furthermore, Plaintiffs assert that the family
members and friends of Plaintiffs, who are likely to have knowledge of relevant facts, are
within subpoena range of neither the Midland nor San Antonio Division. Plaintiffs also claim
that the cost of attending trial in Midland will be considerably higher for them than it
otherwise would be in the San Antonio Division, and that counsel for both Plaintiffs and
Defendants could travel to San Antonio with considerably greater ease.
Plaintiffs also argue that this Court has an interest in adjudicating this dispute given
Defendants’ extensive operations in the Eagle Ford region, near San Antonio. Furthermore,
Plaintiffs note that this Judge has considerable past experience with the relevant areas of law.
Finally, Plaintiffs note that Judge Robert Junell, sitting in the Midland Division, has
announced his intentions to take senior status effective February 2015, which may result in
delay in this matter’s resolution.
By the authority of 28 U.S.C. §1404(a), the court has discretion to transfer this case to
another division where the suit might have been brought “for the convenience of parties and
witnesses” and “in the interests of justice.” In order to determine whether to transfer venue
under §1404(a), the court must conduct a two-step analysis. The court must (1) decide
whether the case might have been brought in the forum to which transfer is sought, and (2)
determine whether a transfer is warranted for the convenience of the parties and witnesses, and
serves the interests of justice.
The party supporting transfer bears the burden of persuading the court that permitting
transfer would amount to more than simply shifting inconvenience from one party to another.
Van Dusen v. Barrack, 376 U.S. 612, 646 (1964). The United States Supreme Court considers
a plaintiff’s venue selection as his or her “venue privilege,” noting that “plaintiffs are
ordinarily allowed to select whatever forum they consider most advantageous (consistent with
jurisdictional and venue limitations).” Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for W.
Dist. of Texas, 134 S. Ct. 568, 581-82 (2013). As a result, when the court is not satisfied that
the transferee venue is clearly more convenient than the plaintiff’s chosen venue, the
plaintiff’s choice should be respected. In re Volkswagen of Am. (Volkswagen II), 545 F.3d
304, 312 (5th Cir. 2008).
The court considers a number of factors, both private and public, in determining
whether transferring venue serves the convenience of the parties and witnesses as well as the
interest of justice. The “private interest 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. at 314 (citing 28 U.S.C.
§1404(a)). The court should also consider the following “public interest factors”: (1) the
administrative difficulties caused by court congestion; (2) the local interest in adjudicating
local disputes; (3) the familiarity of the forum with the law that will govern the case; and (4)
the avoidance of unnecessary problems in conflict of laws. Id. None of these factors is
individually dispositive. In re Volkswagen AG (Volkswagen I), 371 F.3d 201 (5th Cir. 2004).
(1) Whether the Case “Might Have Been Brought in the Transferee District”
A district court is a venue where the action “might have been brought” if it satisfies the
statutory venue requirements set out in 28 U.S.C. §1391. Hoffman v. Blaski, 363 U.S. 335,
354 (1960). Plaintiffs do not dispute that the Midland Division of the Western District of
Texas would be a proper venue for this matter. Therefore, the Midland Division is a venue
where the action might have been brought.
(2) Private Interest Factors
(a) Relative ease of access to sources of proof
Defendants assert that virtually all of the evidence relevant to this matter is located in
Midland. In support of this assertion, Defendants note that opt-in Plaintiff Rios resides in
Midland, that many of the material witnesses reside in Midland, and that the relevant records
and evidence are in Midland/Odessa. Defendants note that Plaintiffs McCloud and Rios
accepted their jobs and received training in Midland/Odessa and worked out of the
Midland/Odessa location. Defendants assert that the bulk of the relevant records are located in
Midland because that office created McCloud’s and Rios’s work schedule and McCloud and
Rios regularly interacted with other employees and customers in Midland/Odessa. Defendants
state that Plaintiffs McCloud and Rios also reported to supervisors in Midland/Odessa daily,
and that payroll records, work schedules, job tickets, personnel files, and other records are
maintained in Midland/Odessa.
Plaintiffs respond that Plaintiff McCloud and opt-in Plaintiff Matt Wilson reside in
Brownwood, Texas, which is slightly closer to San Antonio than it is to Midland (187 miles
versus 199 miles). Plaintiffs also claim that while the relevant payroll data may be stored in
Midland, the Defendants dispatch employees to sites in numerous states and employees are
paid by mail, such that it is therefore less than accurate to claim that “all” payroll records are
maintained in Midland. Furthermore, Plaintiffs claim that Defendants likely keep electronic
payroll records, which could be easily transmitted and produced for trial, making access to this
evidence equally obtainable in either division.
Defendants’ principal offices are in Midland and the relevant sources of proof such as
payroll records and time sheets are located in Midland. Although Plaintiffs state that not “all”
the evidence is in Midland, certainly the bulk of it is there, and Plaintiffs point to no evidence
in San Antonio or within the San Antonio Division. The question is relative ease of access. In
re Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013). Ease of access to sources of proof favors
Midland. The fact that records may be electronic and can be easily transported does not
change the fact that this factor weighs in favor of transfer. In Volkswagen, the Fifth Circuit
noted that the fact “that access to some sources of proof presents a lesser inconvenience now
than it might have absent recent developments does not render this factor superfluous.” 545
F.3d at 316. And any evidence located in Brownwood is equally far from Midland and San
Antonio. This factor therefor weighs solidly in favor of transfer.
(b) Availability of compulsory process to secure the attendance of witnesses
Defendants assert that many of the material witnesses, particularly their employees
with whom Plaintiffs regularly interacted, reside within Midland and therefore within range of
the Midland Division’s subpoena power. Plaintiffs counter by pointing out that Defendants
have not specifically identified who these material witnesses may be, and that these
individuals, as employees of the Defendants, are under Defendants’ control and will appear to
testify if directed to do so by Defendants. Moreover, Plaintiffs argue that the individuals
residing in Brownwood who have material information regarding the Brownwood plaintiffs
are not within subpoena range of either court.
Although Defendants do not identify any particular witness that resides in Midland, it
is clear from the briefing and the circumstances of this case that Defendants’ employee
witnesses will mostly reside in Midland and non-party witnesses will more likely reside in
Midland or its proximity than San Antonio or its proximity. Further, Plaintiff Rios lives in
Midland. There is no indication that any witness resides in San Antonio or within 100 miles
of San Antonio.
A venue that has “absolute subpoena power for both deposition and trial” is favored
over one that does not. Volkswagen II, 545 F.3d at 316. With the recent amendments to Rule
45, both courts have the same subpoena power for depositions. Rule 45 empowers both courts
to command appearance of non-party witnesses at a deposition so long as the deposition is
within 100 miles of where the person resides, is employed, or regularly transacts business in
person. FED. R. CIV. P. 45(c)(1)(A).
District courts may subpoena a witness to attend a trial within the state where the
person resides, is employed, or regularly transacts business in person, if the person (1) is a
party or a party’s officer; or (2) would not incur substantial expense. FED. R. CIV. P. 45(c)(B).
No witnesses have been identified that reside within 100 miles of San Antonio, and thus any
trial subpoena for a non-party witness would be potentially subject to a motion to quash due to
substantial expense. In contrast, the Midland Division would have absolute subpoena power
over Midland witnesses subpoenaed to testify in Midland. Although the parties may utilize
deposition testimony at trial for witnesses who would incur substantial expense and would be
unavailable for trial, the fact that no witnesses have been identified that reside within 100
miles of San Antonio and the availability of absolute subpoena power in Midland for Midland
witnesses means that this factor weighs in favor of transfer.
(c) Cost of attendance for willing witnesses
When the distance between the existing venue and the proposed venue exceeds 100
miles, as it does here, the Fifth Circuit’s 100-mile rule, as set out in Volkswagen I and
Volkswagen II, is applied. Volkswagen II, 545 F.3d at 317. As per the 100 mile-rule, the
factor of inconvenience to witnesses increases in direct relationship to the additional distance
to be travelled. Id.
Both parties acknowledge that if this case is transferred to Midland, the cost of
attendance will be less for those witnesses who reside in Midland and its proximity. However,
Plaintiffs argue that (1) the Brownwood residences are slightly closer to San Antonio; and (2)
that due to economic factors in Midland, travel to that location and lodging there has become
exceedingly expensive, particularly as compared to San Antonio. Defendants counter that
while a change in venue may result in an increase in travel for some plaintiffs and their family
and friends, that difficulty is more than made up for by the increase in convenience for the
Defendants’ numerous witnesses who reside in Midland. Defendants do not address the
potential increase in lodging and other expenses that may be incurred in Midland.
With regard to the two Plaintiffs who reside in Brownwood, they must travel over 100
miles regardless of whether this case is set in San Antonio or Midland, and the distance to San
Antonio is not significantly greater. The fact that two plaintiffs and potential unidentified
“family member and friend” witnesses in Brownwood would have to travel approximately 12
miles farther pales in comparison to the fact that at least one Plaintiff (Rios, who resides in
Midland) and his friends and family and all Midland area witnesses would have to travel
approximately 300 miles to San Antonio. See In re Genentech, Inc., 566 F.3d 1338, 1344 (Fed.
Cir. 2009) (noting that certain witnesses would have to travel a significant distance no matter
where they testified, in contrast with a substantial number of witnesses residing within the
transferee venue who would be unnecessarily inconvenienced by having to travel away from
Similarly, although two plaintiffs and potential unidentified witnesses outside the
Midland area would perhaps have to pay somewhat inflated hotel costs in Midland, that
potential amount is small compared to the hotel expenses that would be incurred by the
Midland plaintiff (or plaintiffs) and all of the Midland witnesses if they must travel to San
Antonio. Therefore, this factor weighs in favor of transfer.
(d) All other practical problems
Beyond the expressly listed private factors, the court is also required to consider “all
other practical problems that make trial of a case easy, expeditious and inexpensive.”
Volkswagen I, 371 F.3d at 3. Plaintiffs argue that travel to San Antonio will be considerably
easier for both Plaintiffs’ and Defendants’ counsel than travel to Midland. The Fifth Circuit,
however, has held that convenience of counsel is not a factor to be considered in determining
the propriety of a motion to transfer venue. See Volkswagen I, 371 F.3d at 206 (“The word
‘counsel’ does not appear anywhere in §1404(a), and the convenience of counsel is not a
factor to be assessed in determining the question of transfer under §1404(a).”).
this factor is neutral.
(3) Public Interest Factors
(a) Court congestion
In its analysis of a motion to transfer venue, the court is required to consider the
administrative difficultly that may arise as a result of court congestion. Volkswagen II, 545
F.3d at 315. “The real issue is not whether transfer will reduce a court’s congestion but
whether a trial may be speedier in another court because of its less crowded docket.” In re
Greentech, Inc., 566 F.3d 1338, 1347 (D.C. Cir. 2009) (quoting Gates Learjet Corp. v. Jensen,
743 F.2d 1325, 1337 (9th Cir. 1984).
Neither party argues that either division has a clearly more congested docket, but both
parties acknowledge that Midland’s Judge Junell has announced his intention to take senior
status. The effect of Judge Junell’s taking senior status is somewhat speculative, though it is
reasonable to conclude that it could result in some delay if the case is transferred to the
Midland Division. Thus, the Court finds this factor weighs slightly against transfer.
(b) Local interest in having localized disputes decided at home
Defendants argue that Plaintiffs have no connection to San Antonio, that the Plaintiffs
do have significant contacts with Midland, that the San Antonio Division should not be
burdened by a case with which it has no connection, and that the Midland Division has a
significant interest in the case and parties.
Plaintiffs counter that Defendants maintain
locations throughout the United States, including in the Eagle Ford shale region in South
Texas relatively near San Antonio. Plaintiffs also assert that one of the opt-in Plaintiffs
worked in Pleasanton, Texas just to the south of San Antonio. Plaintiffs also predict that it is
likely that additional San Antonio area residents will enter this matter as plaintiffs in the
The Court finds that, on the current record before the Court, this favor weighs in favor
of transfer. The events giving rise to this lawsuit occurred primarily in the Midland Division
and Defendants’ principal places of business are in Midland. Although Plaintiffs argue that
Defendants serve customers in the Eagle Ford Shale, at this point no Plaintiff has been
identified as having worked for Defendants in the Eagle Ford Shale. Rios’s declaration states
that he worked in Pleasanton at some point, but he does not expressly state that he worked for
Defendants there or within the relevant time period for this litigation. And Defendants dispute
that Rios ever worked for them in any county within the San Antonio Division. Thus, at this
point in time, any connection to the San Antonio Division is tenuous while the Midland
Division has a clear interest in this litigation.
(c) The familiarity of the forum with the law that will govern the case
This factor is neutral. Both this Court and the Midland Division are equally capable of
hearing and deciding a federal law claim such as the FLSA claims in this case.
(d) Conflict of law
Neither party contends that this is a relevant factor. This factor is therefore neutral.
As discussed above, most factors weigh in favor of transfer or are neutral. The only
factor potentially weighing against transfer is relative court congestion, based on Judge
Junell’s intention to take senior status next year. However, when “several relevant factors
weigh in favor of transfer and others are neutral, then the speed of the transferee district court
should not alone outweigh all of those other factors.”
Genentech, 566 F.3d at 1347.
Accordingly, the Court finds that Defendants have met their burden of demonstrating that the
Midland Division is clearly more convenient and that transfer would serve the interests of
Defendants’ motion to transfer venue to the Midland Division of the Western District
of Texas is GRANTED and this case is TRANSFERRED to the Midland Division.
SIGNED this 14th day of November, 2014.
UNITED STATES DISTRICT JUDGE
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