United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER TRANSFERRING
L. HORAN, UNITED STATES MAGISTRATE JUDGE
Norman and Regina Strehl, husband-and-wife citizens of
Arkansas, allege that, while they were on vacation in
Silverthorne, Colorado, on December 26, 2015, Regina slipped,
fell, and injured herself while entering a Zales Outlet
jewelry store located at The Outlets of Silverthorne, an
open-air outlet mall. See Dkt. No. 3.
pro se tort action, filed in January 2017, is based on that
incident, and the Strehls have sued Zale Corporation, a
Delaware corporation with its corporate offices in Irving,
Texas, in the Dallas Division of this district, and Craig
Realty Group, a California corporation, alleged to own,
develop, and manage The Outlets at Silverthorne. See
case has been referred to the undersigned United States
magistrate judge for pretrial management under 28 U.S.C.
§ 636(b) and a standing order of reference from United
States District Judge David C. Godbey.
defendants have answered. See Dkt. Nos. 8 & 15. And Craig
Realty has moved to transfer this case, under 28 U.S.C.
§ 1404(a), to the District of Colorado. See Dkt. Nos. 7
& 8. The Strehls have filed a response in opposition to
that motion. See Dkt. No. 14. Craig Realty has filed a reply
brief. See Dkt. No. 17. And, while Zale Corporation has not
weighed in on the pending motion to transfer, its answer
asserts that venue is not proper in this district. See Dkt.
No. 15 at 1, 2-3, & 9.
reasons explained below, Craig Realty's motion to
transfer should be granted, and this action should be
transferred to the District of Colorado.
Standards and Analysis
1404(a) provides that, “[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.” In applying
Section 1404(a), the Court must first determine
“whether the judicial district to which transfer is
sought would have been a district in which the claim could
have been filed.” In re Volkswagen AG, 371
F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I ”).
Once this initial determination is made, the Court
turn[s] to the language of § 1404(a), which speaks to
the issue of “the convenience of parties and
witnesses” and to the issue of “in the interest
of justice.” The determination of
“convenience” turns on a number of private and
public interest factors, none of which [is] given dispositive
weight. The private concerns 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. The public concerns 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. (citations omitted).
of venue under Section 1404(a) is at the Court's
discretion, considering “‘[a]ll relevant factors
to determine whether or not on balance the litigation would
more conveniently proceed and the interests of justice be
better served by transfer to a different forum.'”
El Chico Restaurants of Tex., Inc. v. Carroll, No.
3:09-cv-2294-L, 2010 WL 2652286, at *2 (N.D. Tex. June 29,
2010) (quoting Peteet v. Dow Chem. Co., 868 F.2d
1428, 1436 (5th Cir. 1989)).
plaintiff's original choice of forum is entitled to some
deference, which dictates that the moving party must
“demonstrate[ ] that the transferee venue is clearly
more convenient.” In re Volkswagen of Am.,
Inc., 545 F.3d 304, 315 (5th Cir. 2008)
(“Volkswagen II ”). But, while a plaintiff's
choice of forum “should be respected” unless
“the transferee venue is clearly more convenient,
” a plaintiff's “choice of forum ... is not
an independent factor within ... the § 1404(a)
analysis.” Id. at 314 n.10, 315. Rather,
“a plaintiff's choice of venue is to be treated as
a burden of proof question.” Id. at 314 n.10
(internal quotation marks omitted).
initial matter, the Court determines that this action could
have been brought in the District of Colorado. Civil
diversity actions, such as this one, may be brought in
“a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred,
” among other locations. 28 U.S.C. § 1391(b)(2);
see, e.g., Osgood v. Discount Auto Parts, LLC, 981
F.Supp.2d 1259, 1264 (S.D. Fla. 2013) (“Here,
Plaintiff's accident occurred in Lake City, which is
located in the Middle District of Florida. Thus, this case
could have been brought there in the first instance.”
(citing 28 U.S.C. § 1391(b)(2)); cf. Dover v. Resort
Cos., Inc., Civ. No. 2:12-cv-03785 (WJM), 2013 WL
827432, at *1 (D.N.J. Mar. 6, 2013) (“[U]nder 28 U.S.C.
§ 1391(b)(2), venue is proper only in the Western
District of Virginia, as the only event giving rise to the
claim - Derrick Dover's alleged slip and fall - occurred
in Rockingham, Virginia.”).
Fifth Circuit's convenience factors also weigh in favor
of transferring the action to the District of Colorado, as
the only connection to this district is that ...