Maria Arenas v. John Calhoun

Filing 30

ORDER DENYING 24 Motion to Transfer Venue. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARIA ARENAS, individually,
Plaintiff,
v.
JOHN CALHOUN, in his individual
capacity,
Defendant.

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Civil Action No. SA-16-CV-1203-XR

ORDER ON MOTION TO TRANSFER VENUE
On this date, the Court considered Defendant John Calhoun’s Motion to Transfer Venue
pursuant to 28 U.S.C. § 1404(a). Docket no. 24. Defendant requests that this case be transferred
to the Southern District of Georgia, Savannah Division, where Plaintiff has sued other parties
involved in this matter. After careful consideration of Defendant’s motion, Plaintiff’s response
(Docket no. 27), and the relevant law, this Court DENIES Defendant’s Motion to Transfer
Venue.
BACKGROUND
Plaintiff Maria Arenas is the mother of Richard Tavara, deceased. Docket no. 1 at 1.
Tavara had a history of severe mental illness, including civil commitment and attempted suicide.
Id. at 2–3. On the night of December 7, 2014, Tavara, while incarcerated at Smith State Prison
in Tattnall County Georgia, took his own life. Id. at 2.
Defendant John Calhoun, at the time of the incident, was employed by Smith State Prison
as a correctional officer. Id. at 1. Plaintiff alleges that Defendant witnessed Tavara attempting

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to hang himself by tying one end of his bedsheet around a sprinkler on the ceiling of his cell and
the other end around his neck. Id. at 3. Defendant instructed Tavara to stop and made four calls
over the radio to his supervisors and other officers for assistance. Docket no. 5 at 2. While
waiting for his supervisors to arrive, Defendant did not enter Tavara’s cell. Docket no. 1 at 3;
Docket no. 5 at 2. Defendant maintains that prison policy prevented him from entering Tavara’s
cell until assistance arrived. Docket no. 5 at 2. The first supervisor, Sgt. Shelby, did not arrive
at Tavara’s cell until eight minutes after Defendant made the call on the radio, and the second
supervisor, Lt. Dickson, did not arrive until ten minutes after Defendant made the call. Docket
no. 1 at 3. Upon his arrival, Lt. Dickson instructed Defendant to open Tavara’s cell door.
Docket no. 1 at 3; Docket no. 5 at 2. Once the cell door was opened, assisting officers lowered
Tavara to the floor and administered CPR until medical personnel arrived. Docket no. 5 at 2.
Plaintiff alleges that Defendant did not contact EMS until at least fifteen minutes after he first
witnessed Tavara attempting to hang himself. Docket no. 1 at 3. By the time medical personnel
arrived on the scene, more than thirty minutes had elapsed from the point which Defendant first
witnessed Tavara attempting to hang himself. Id.
On November 28, 2016, Plaintiff filed suit against Defendant, in his individual capacity,
in this Court under 42 U.S.C. § 1983, alleging that Defendant’s inactions related to Tavara’s
suicide constituted deliberate indifference and violated Tavara’s Eighth and Fourteenth
Amendment rights. Id. at 4. Because Defendant had since moved from Georgia to Texas, venue
is proper in this Court under 28 U.S.C. § 1391(b)(1). See 28 U.S.C. § 1391(b)(1) (permitting a
civil action to be brought in “a judicial district in which any defendant resides”). Plaintiff has
also filed a companion suit against Defendant’s supervising officers in the Southern District of

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Georgia. Arenas v. Georgia Dep’t of Corr., et al., CV 4:16-320, 2017 WL 1754770, at *1 (S.D.
Ga. May 3, 2017); Docket no. 24 at 2; Docket no. 25 at 3. Considering Plaintiff’s companion
case, venue is proper in the Southern District of Georgia under 28 U.S.C. § 1391(b)(2) because
all of the events giving rise to Plaintiff’s claims took place in the Southern District of Georgia.
See 28 U.S.C. § 1391(b)(2) (“A civil action may be brought in . . . a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred”). Defendant,
pursuant to 28 U.S.C. § 1404(a), requests that this Court transfer the instant action to the
Southern District of Georgia, Savannah Division, where the companion case is currently
pending.
LEGAL STANDARD
“For 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.”
28 U.S.C. § 1404(a). The threshold issue under § 1404(a) is whether the civil action “might have
been brought” in the district to which transfer is sought. 28 U.S.C. § 1404(a); In re Volkswagen
of Am., Inc., 545 F.3d 304, 312 (5th Cir. 2008). Once it is established that a civil action could
have been brought in the destination venue, § 1404(a) gives the district court discretion to decide
whether transfer is appropriate by balancing case-specific factors concerning the parties’ private
interests in convenience and the public interest of fair administration of justice. Stewart Org.,
Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); Robinson v. Hillcrest Baptist Med. Ctr., No. A-09CA-640-SS, 2009 WL 4639901, at *2 (W.D. Tex. Nov. 30, 2009) (citing Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 508 (1947)).

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The 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.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)
(citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). The 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 of the application of
foreign law.” Id. It is important to note that these private and public interest factors are neither
exhaustive nor exclusive, and no one factor holds dispositive weight. Volkswagen, 545 F.3d at
315.
Additionally, Fifth Circuit case law has considered a party’s delay in requesting transfer
and whether the party requesting transfer has done so with reasonable promptness as peripheral
influences when determining whether to transfer a case.

See, e.g., In re Horseshoe

Entertainment, 337 F.3d 429, 434 (5th Cir. 2003) (“[I]n rare and special circumstances a factor
of ‘delay’ or of ‘prejudice’ might be relevant in deciding the propriety of transfer.”); Peteet v.
Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir. 1989) (“Parties seeking a change of venue
should act with ‘reasonable promptness.’”); Mohamed v. Mazda Motor Corp., 90 F. Supp. 2d
757 (E.D. Tex. 2000) (“If a litigant resisting transfer successfully shows the Section 1404(a)
transfer motion is a dilatory tactic, or that it would be prejudiced solely because of the delay in
bringing the motion, then the litigant moving for transfer has failed to show ‘reasonable
promptness’ in bringing his transfer motion.”).

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The burden to show good cause for transfer rests on the moving party. Humble Oil &
Ref. Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963). To succeed on a motion to
transfer venue, the moving party must show that, based on the public and private interest factors,
the transferee venue is “clearly more convenient than the venue chosen by the plaintiff.”
Volkswagen, 545 F.3d at 315 (emphasis added). The moving party must provide the court with
enough information to balance the parties’ interests. Piper Aircraft Co. v. Reyno, 454 U.S. 235
(1981). Therefore, unless Defendant has provided this Court with sufficient information that,
based on the public and private interest factors, the Southern District of Georgia is clearly a more
convenient venue to hear this case, Plaintiff’s original venue determination should be given
deference. See Volkswagen, 545 F.3d at 315 (“[W]hen the transferee venue is not clearly more
convenient than the venue chosen by the plaintiff, the plaintiff's choice should be respected.
When the movant demonstrates that the transferee venue is clearly more convenient, however, it
has shown good cause and the district court should therefore grant the transfer.”).
ANALYSIS
a) Whether Plaintiff Might Have Brought Suit Against Defendant in the Southern
District of Georgia
The preliminary inquiry is whether Plaintiff could have brought this suit against
Defendant in the Southern District of Georgia. A party may bring suit 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). Both parties agree that the events giving rise to this claim occurred at Smith State
Prison in Tattnall County Georgia, which is located in the Southern District of Georgia. Docket
no. 1 at 1; Docket no. 24 at 1. Because the events or omissions giving rise to Plaintiff’s claim

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occurred in the Southern District of Georgia, venue in the Southern District of Georgia would
have been proper. See 28 U.S.C. § 1391(b)(2).
It is also important to consider whether the Southern District of Georgia would have had
personal jurisdiction over Defendant. Because Defendant had moved to Texas by the time
Plaintiff filed this suit, Defendant is a nonresident for the purposes of establishing the Southern
District of Georgia’s personal jurisdiction over him. Docket no. 24 at 1; Docket no. 27 at 2.
Under Eleventh Circuit law, a court only has personal jurisdiction over a nonresident if both of
the following prongs are satisfied: first, there must be a basis for asserting personal jurisdiction
over the nonresident under the state’s long-arm statute; and second, there must be sufficient
minimum contacts between the nonresident and the state to satisfy the Due Process Clause of the
Fourteenth Amendment. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). Georgia’s
long-arm statute permits Georgia courts to “exercise personal jurisdiction over any nonresident”
who “[c]ommits a tortious act or omission within [Georgia].” GA. CODE § 9-10-91.
Defendant falls within Georgia’s long-arm statute because, at the time of his alleged
tortious conduct, he was both a resident and an employee of the State of Georgia. See GA. CODE
§ 9-10-91; Docket no. 24 at 1; Docket no. 1 at 1. Furthermore, based on Defendant’s residential
and employment status at the time of the event in question, sufficient minimum contacts existed
between Defendant and the State of Georgia such that Defendant should “reasonably anticipate
being haled into court there” to answer allegations that he committed a tortious act or omission in
Georgia. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Because
Defendant meets the requirements of Georgia’s long-arm statute and sufficient minimum
contacts exist between Defendant and the State of Georgia, this Court determines that the

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Southern District of Georgia would have had personal jurisdiction over Defendant if Plaintiff
were to have initially filed suit against Defendant in the Southern District of Georgia. See
Madara, 916 F.2d at 1514. Therefore, because the acts or omissions giving rise to Plaintiff’s
cause of action occurred in the Southern District of Georgia and the Southern District of Georgia
could have exercised personal jurisdiction over Defendant, this Court determines that Plaintiff
could have originally brought this suit against Defendant in the Southern District of Georgia.
See 28 U.S.C. § 1391(b)(2); Madara, 916 F.2d at 1514.
Having established that Plaintiff could have originally brought this action against
Defendant in the Southern District of Georgia, it is at the discretion of this Court to determine
whether Defendant has shown that the Southern District of Georgia is “clearly more convenient
than the venue chosen by the plaintiff” based on the balance of the public and private interest
factors. See 28 U.S.C. § 1404(a); Volkswagen, 545 F.3d at 315 (emphasis added).
b) The Private Interest Factors
i) Relative ease of access to sources of proof
Defendant asserts that “all of the documents and physical evidence relating to Tavara’s
suicide are located in the Southern District of Georgia,” including “witnesses involved in
responding to the suicide,” and that “Plaintiff will not be able to identify any evidence that is
found in San Antonio.” Docket no. 24 at 6. However, although Defendant is correct that all
evidence relating to Tavara’s suicide is located in Georgia, Plaintiff’s Complaint also seeks
damages from Defendant based on the loss of her son’s life. Docket no. 1 at 5. Plaintiff’s
damages witnesses and physical evidence related to damages are all located in Texas. Docket
no. 27 at 8–9. Accordingly, both parties have evidence in locations that support their respective

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positions on where this case should ultimately proceed. Docket no. 24 at 6; Docket no. 27 at 8–
9. However, the presence of evidence in both locations does not make the balance of this factor
neutral between the parties.
Cases from this Court have acknowledged that, due to technological advancements,
information can be transferred across vast distances with great ease, thereby reducing the
inconvenience of accessing certain types of evidence. See, e.g., Walker v. Stroman, No. A-17CA-235-SS, 2017 WL 2829702, at *3 (W.D. Tex. June 28, 2017) (“[T]his factor is not generally
given much weight in the § 1404 analysis given the ease in which information can be transferred
with today's technology.”); Tapia v. Dugger, No. SA-06-CA-0147-XR, 2006 WL 2620530, at *4
(W.D. Tex. Sept. 7, 2006) (“Technological advances in copying, storing, and transferring data,
however, limit the weight to be given the accessibility and location of sources of proof in the
§ 1404(a) analysis.”); see also Moss v. Lockheed Martin Corp., No. 3:10-CV-1659-M, 2011 WL
197624, at *3 (N.D. Tex. Jan. 18, 2011) (“Due to increasing technological advances, access to
some sources of proof presents a lesser inconvenience than it once did; however, the fact that
technology reduces the inconvenience does not render this factor superfluous.”). Accordingly,
the documentary and physical evidence that is located in the Southern District of Georgia, such
as written statements regarding Tavara’s suicide and video surveillance of the incident, is also
conveniently accessible from Texas, especially because the parties to the companion suit in the
Southern District of Georgia have agreed to share discovery between the two cases. See Docket
no. 24 at 2, 6; Docket no. 27 at 9.
Furthermore, this Court requires a party requesting transfer, when arguing transfer is
warranted based on the convenience of witnesses, to “specifically identify the key witnesses and

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outline the substance of their testimony.” Mateos v. Select Energy Services, L.L.C., 919 F. Supp.
2d 817, 823 (W.D. Tex. 2013) (quoting Hupp v. Siroflex of Am., Inc., 848 F. Supp. 744, 749
(S.D. Tex. 1994)).

Defendant specifies “Sgt. Shelby, Lt. Dickson, Officer Haas, Officer

Mitchell, and an undetermined representative of the Georgia Department of Corrections” as
potential witnesses located in the southern District of Georgia, but does not outline the substance
of their testimony. See Docket no. 24 at 6. This Court presumes that the testimony of each
witness will be based on their personal knowledge of the event in question. See FED. R. EVID.
602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to prove personal
knowledge may consist of the witness's own testimony.”).
The testimonies of the witnesses specified by Defendant are unlikely to reveal additional
facts regarding the claims brought specifically against Defendant that either Defendant’s own
testimony or shared discovery would not establish if the case were to remain in this Court. See
Docket no. 24 at 6; Docket no. 27 at 10–11. Additionally, Defendant’s qualified immunity
defense must focus on his own personal knowledge and actions, not those of anyone else. See
Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017) (internal quotation marks omitted) (“The
qualified immunity analysis thus is limited to the facts that were knowable to the defendant
officers at the time they engaged in the conduct in question.”). However, if this case were to be
transferred to the Southern District of Georgia, Plaintiff’s ability to call damage witnesses would
be severely inconvenienced because of the substantial burdens associated with calling residents
of Austin, Texas, to testify at a trial in the Southern District of Georgia. See Docket no. 27 at 8–
9. Therefore, because Defendant may retain convenient access to his specified sources of proof

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if this case were to remain in this Court, whereas Plaintiff’s ability to call damage witnesses
would be significantly inconvenienced if this case is transferred to the Southern District of
Georgia, the Court finds this factor weighs against transfer.
ii) Availability of compulsory process to secure the attendance of witnesses
A district court may issue a subpoena to command a person to attend a trial, hearing, or
deposition only within 100 miles of where the person resides, is employed, or regularly transacts
business, or within the state where the person resides, is employed, or regularly transacts
business if the person is either a party, a party’s officer, or is commanded to attend trial and
would not incur substantial expense. FED. R. CIV. P. 45(c)(1).
Defendant is concerned that non-party witnesses, specifically the supervising and
assisting officers, “who may testify concerning the response to Tavara’s suicide” all reside in
Georgia, well beyond the 100 mile range for subpoenas established by Rule 45, and thus cannot
be commanded to testify by this Court. Docket no. 24 at 6. However, as stated above, the
supervising and assisting officers’ testimonies are likely to overlap and duplicate Defendant’s
own testimony because Defendant was the only officer to witness Tavara’s suicide in its entirety;
every other witnessing officer identified by Defendant arrived at a point in time after Defendant
called for assistance on the radio. See Docket no. 5 at 2. Furthermore, if this case remains in this
Court, Defendant would not be completely shut off from introducing the testimonies of the
supervising and assisting officers because, as both parties acknowledge, these testimonies may
be presented at trial in the form of a video deposition. Docket no. 24 at 7; Docket no. 27 at 10–
11.

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The scope of this case is narrower than the companion case currently pending in the
Southern District of Georgia. In that case, Plaintiff is suing the supervising officers, Georgia
Department of Corrections, and Georgia Correctional Healthcare for causes of action based on
both the personal and the institutional handling of Tavara’s suicide. Arenas v. Georgia Dep’t of
Corr., et al., CV 4:16-320, 2017 WL 1754770, at *1 (S.D. Ga. May 3, 2017). In this case, where
Plaintiff brings a claim against Defendant in his individual capacity for damages based on his
own alleged deliberate indifference which contributed to the death of Plaintiff’s son, the most
significant witnesses are Plaintiff, Defendant, and those who will testify regarding damages. All
of Plaintiff’s damages witnesses currently reside in Austin, Texas, far beyond the 100 mile radius
of the Southern District of Georgia’s subpoena range. See Docket no. 27 at 8–9. Because
transferring this case to the Southern District of Georgia would prejudice Plaintiff’s ability to
secure the attendance of damages witnesses more than Defendant’s ability to present the
testimonies of supervising and assisting officers, the Court finds that this factor weighs against
transfer. See FED. R. CIV. P. 45(c)(1).
iii) Cost of attendance for willing witnesses
“Convenience of the witnesses has been recognized as the most important factor under
§ 1404(a),” and the convenience of non-party witnesses is given “greater weight in the transfer of
venue analysis.” Bascom v. Maxim Integrated Prods., Inc., 534 F. Supp. 2d 700, 704 (W.D. Tex.
2008) (internal quotation marks omitted). As previously stated, this Court requires a party
requesting transfer based on the convenience of witnesses to “specifically identify the key
witnesses and outline the substance of their testimony.” Mateos, 919 F. Supp. 2d at 823.
Defendant contends that there are “at least five known non-party witnesses who reside in

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Georgia,” and “transferring venue to the Southern District of Georgia will be of minimal
inconvenience for Plaintiff” because Plaintiff will have to travel to the Southern District of
Georgia anyway for a trial of the companion case. Docket no. 24 at 7. However, considering the
overlap with Defendant’s own testimony and that Defendant does not lose his ability to introduce
this testimony at trial in this Court by means of video deposition or through shared discovery, the
substance of the testimony of the witnesses identified by Defendant are of marginal importance
to the claims against Defendant at issue in this case. See Docket no. 24 at 2, 7; Docket no. 27 at
10–11. Therefore, Defendant could conveniently introduce this evidence at trial in this Court
without incurring any substantial additional expenses. See id.
Plaintiff, on the other hand, has identified specific damage witnesses residing in Austin,
Texas, and retained local expert witnesses to testify concerning whether Tavara would have
survived had Defendant assisted him before the supervising officers arrived, the reasonableness
of Defendant’s response to Tavara’s suicide, and the value of Tavara’s life, respectively. Docket
no. 27 at 11–12. As previously noted, none of Plaintiff’s witnesses may be compelled to testify
at trial if this case were to be transferred to the Southern District of Georgia. See FED. R. CIV. P.
45(c)(1) (establishing a 100-mile radius for a district court’s subpoena power to command a
person to attend a trial, hearing, or deposition). Therefore, if this case were to be transferred to
the Southern District of Georgia, Plaintiff would be severely inconvenienced in two ways: first,
Plaintiff’s non-party witnesses on damages would be deterred from testifying at trial in the
Southern District of Georgia because of the burdens associated with travelling there; and second,
Plaintiff would either have to pay the expenses for the experts to travel to Georgia to testify or
Plaintiff would have to retain new and different experts who reside in Georgia. See (Docket no.

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27 at 11–12).

Because Plaintiff and her non-party witnesses would endure heavier costs

associated with proceeding to trial in the Southern District of Georgia than Defendant would
incur by continuing in this Court, the Court finds this factor weighs against transfer.
iv) Other practical problems that make trial or a case easy, expeditious, and
inexpensive
This factor expresses three interests: ease, time, and expense. See In re Volkswagen AG,
371 F.3d 201, 203 (5th Cir. 2004) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6
(1981)). Regarding the ease of trial, there is only one defendant in this case, whereas there are
four defendants in the companion case in the Southern District of Georgia, two of which are state
institutions. See Arenas v. Georgia Department of Corrections, et al., CV 4:16-320, 2017 WL
1754770, at *1 (S.D. Ga. May 3, 2017). Maintaining venue in this Court would make trial of the
claims at issue in this case easier than in the Southern District of Georgia because of the
narrowed focus on Defendant’s specific acts, as opposed to litigating various claims against
multiple defendants, some of which are state institutions, with more complicated issues. See id.
Likewise, the narrowed focus of this case, compared to that of the companion case in the
Southern District of Georgia, indicates that maintaining venue in this Court will result in a
relatively shorter trial than if this case is transferred. See id.
Furthermore, in special circumstances, this Court may consider the timing of a motion to
transfer, as well as if the party requesting transfer has done so with reasonable promptness, when
weighing the potential prejudice to the parties from a proposed transfer. See In re Horseshoe
Entertainment, 337 F.3d at 434; Peteet, 868 F.2d at 1436; Mohamed, 90 F. Supp. 2d at 760. One
standard for assessing whether a party requesting transfer has done so with reasonable
promptness is whether the party resisting transfer can show either that the transfer motion is a

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dilatory tactic or that they would be prejudiced due to the delay in bringing the motion.
Mohamed, 90 F. Supp. 2d at 760. In this case, Defendant waited until after seven months of
discovery had passed before filing Defendant’s Motion to Transfer Venue and Brief in Support.
Docket no. 27 at 2. By that time, Plaintiff already retained Texas-based expert witnesses to
testify at trial based on an understanding that Defendant wished to proceed in this Court. Id. at 3.
Transferring this case to the Southern District of Georgia would prejudice the Plaintiff by
undermining her retention of local experts and delaying the litigation process even further.
Additionally, Defendant now files his Motion to Transfer Venue after he previously did
not wish to return to Georgia. At a Status Conference held on April 13, 2017, before this Court,
Plaintiff stated that the parties had an initial plan to consolidate this case with the companion
case in the Southern District of Georgia. After Defendant was served and filed his answer with
this Court, however, he no longer wanted to return to Georgia. Now, after the Court has ruled on
some matters in this case, Defendant seeks to transfer venue. The timing of Defendant’s motion
cast against his initial desire to keep the case with this Court weighs against transfer.
Plaintiff also argues that Defendant has purposefully sought transfer to the Southern
District of Georgia because “parallel motions to dismiss are still pending” in the companion case.
Docket no. 27 at 8. Plaintiff alleges that, because this Court denied Defendant’s motion to
dismiss under Fifth Circuit law, Docket no. 18, Defendant’s motion to transfer is meant to obtain
a second chance at dismissing the case under Eleventh Circuit law. Docket no. 27 at 8. Plaintiff
would undoubtedly be prejudiced if, after this Court denied Defendant’s previous motion to
dismiss, this case were to be transferred to the Southern District of Georgia and subsequently a
motion to dismiss were to be granted.

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Finally, the Court must consider trial expenses. Defendant points out that travelling to
the Southern District of Georgia is not inconvenient for Plaintiff because Plaintiff will “already
be required to travel to that district for a trial of [the companion] case.” Docket no. 24 at 7.
However, the total expense associated with this litigation will surely increase if this case were to
be transferred to the Southern District of Georgia. Plaintiff’s witness costs will increase as she
will have to either transport current witnesses to Georgia or retain Georgia experts to testify at
trial, and the delay of the proceedings will lead to an increase in the costs of attorney’s fees for
both parties. See Docket no. 27 at 12–13. Under the totality of the circumstances, the Court
finds that, at this late of a point in the litigation, the interests of ease, time, and expense all weigh
against transfer.
c) The Public Interest Factors
i) Administrative difficulties flowing from court congestion
“Generally, this factor favors a district that can bring a case to trial faster.” Frito-Lay N.
Am., Inc. v. Medallion Foods, Inc., 867 F. Supp. 2d 859, 871 (E.D. Tex. 2012). The current state
of the litigation in this Court is farther along than the companion case in the Southern District of
Georgia. This case has conducted discovery for the past seven months, has a discovery cut-off
date of October 27, 2017, and a set trial date of February 20, 2018. Docket no. 19. The
companion case in the Southern District of Georgia has neither a scheduling order nor a trial
date, and currently has pending a motion to dismiss. Docket no. 27 at 3. Maintaining venue in
this Court will bring Plaintiff’s claims against Defendant to trial sooner than transferring this
case to the Southern District of Georgia. See Docket no. 27 at 3. Accordingly, the Court finds
this factor weighs against transfer.

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ii) Local interest in having localized interests decided at home
“Jury duty is a burden that ought not to be imposed upon the people of a community
which has no relation to the litigation.” In re Volkswagen AG, 371 F.3d at 206 (citing Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947)). Defendant contends that “[c]itizens of San
Antonio do not have any interest in the practices of a Georgia prison or whether the application
of those practices in this case deprived a Georgia inmate of his constitutional rights,” and that
“Georgia citizens have a strong interest in being able to assess the constitutionality of the
conduct of its State employees and the practices of its State agencies.” Docket no. 24 at 8.
Plaintiff responds that “[t]he people of Central Texas certainly have an interest in how one of
their own community members is treated when he leaves the state’s borders,” and that because
Defendant is now employed as a correctional officer in Texas, “Texans now have a grave interest
in how he performs his duties as a prison guard.” Docket no. 27 at 6.
Although Defendant’s assertion that citizens of Georgia have a strong interest in
assessing the practices and conduct of state agencies and employees is true, that public interest is
not unique to Plaintiff’s claims against Defendant individually.

Because of Plaintiff’s

companion case against other officers and the Georgia Department of Corrections and Georgia
Correctional Healthcare currently pending in the Southern District of Georgia, citizens of
Georgia will retain the ability to assess the constitutionality of the practices and conduct of their
state agencies and employees regardless of whether this case remains in this Court or is
transferred to the Southern District of Georgia. Furthermore, citizens of both states have at least
some degree of interest in adjudicating this dispute because the incident in question involved a
resident of Texas. Therefore, because citizens of both Texas and Georgia have legitimate public

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interests in resolving this case, this Court finds this factor neutral to transfer. See Walker, 2017
WL 2829702, at *3 (deciding the local interest factor as neutral where citizens of both venues
had interest in deciding the case).
iii) Familiarity of the forum with the law that will govern the case
Defendant asserts that “it is unclear whether the ‘clearly established’ prong of the
qualified immunity analysis would require this Court to look at the Fifth Circuit’s cases, the
Eleventh Circuit’s cases, or both,” but concludes that because “the Southern District of Georgia
will be resolving the qualified immunity issue in the companion case based on Eleventh Circuit
case law, it makes sense for that court to determine all of the qualified immunity issues that stem
from Tavara’s suicide.” Docket no. 24 at 9. Plaintiff responds that Defendant “made a choice of
law to apply the Fifth Circuit’s precedent, and the Fifth Circuit’s law is now [the] ‘law of the
case.’” Docket no. 27 at 7. “The law-of-the-case doctrine generally provides that when a court
decides upon a rule of law, that decision should continue to govern the same issues in subsequent
stages in the same case.” Musacchio v. United States, 136 S. Ct 709, 716 (2016) (quoting
Pepper v. United States, 562 U.S. 476, 506 (2011)) (internal quotation marks omitted).
Defendant moved, under Fifth Circuit law, to dismiss Plaintiff’s complaint for failure to
state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure and also asserted his defense of qualified immunity. Docket no. 5 at 3–10. In
support of the Motion to Dismiss, Defendant cited to numerous Fifth Circuit cases on both the
Rule 12(b)(6) and qualified immunity issues. See Docket no. 5 at 5–7. This Court denied
Defendant’s Motion to Dismiss, Docket no. 18, analyzing both the deliberate indifference claim
and the qualified immunity defense under applicable Fifth Circuit case law. Docket no. 18 at 5–

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13. The procedural posture of this case has thus established Fifth Circuit law as the “law-of-thecase,” and the ultimate merits of the claims and defenses asserted in this case should continue to
be decided under Fifth Circuit law. See Musacchio, 136 S. Ct at 716. Therefore, the Court finds
that this factor weighs against transfer.
iv) Avoidance of unnecessary problems of conflicts of laws of the application
of foreign law
Defendant argues that the Southern District of Georgia should determine all of the
qualified immunity issues in both cases, “[o]therwise the two courts could potentially reach
opposite conclusions or factual findings on the qualified immunity issue.” Docket no. 24 at 9.
However, as discussed above, because Defendant approached the claims and defenses at issue in
this case under Fifth Circuit law, Fifth Circuit law is now the law-of-the-case. See Musacchio,
136 S. Ct at 716. If Defendant wished to proceed under Eleventh Circuit law, he was obligated
“to call the applicability of another state’s law to the [C]ourt’s attention in time to be properly
considered.” See Kucel v. Walter E. Heller & Co., 813 F.2d 67, 74 (5th Cir. 1987). Defendant
did not do so, and instead chose to proceed under Fifth Circuit law. See Docket no. 5 at 3–10.
Transferring this case to the Southern District of Georgia thereby risks creating a conflict of laws
in the application of foreign law because the Southern District of Georgia would be obligated to
apply two different circuit precedents to the overlapping issues of these two cases. Accordingly,
the Court finds that this factor weighs against transfer.
CONCLUSION
In accordance with 28 U.S.C. § 1404(a), because both the private and public interest
factors weigh against transfer, and because retaining this case in this Court is in the interest of
justice, this Court hereby DENIES Defendant’s Motion to Transfer Venue. Docket no. 24.

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It is so ORDERED.
SIGNED this 12th day of October, 2017.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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