United States District Court, S.D. Texas, Galveston Division
MEMORANDUM ORDER AND OPINION DENYING MOTION TO
C. Hanks Jr. United States District Judge.
Kimberly Milbauer, filed this lawsuit on September 1, 2016,
complaining of age and race discrimination by her former
employer, Newspan Media Corporation. Milbauer is a resident
of Denton County, Texas. Newspan is a Texas corporation.
has filed a motion to transfer this case to the United States
District Court for the Southern District of Texas, Houston
Division. Dkt. 19. Newspan alleges that transfer of this case
is warranted because Houston is a clearly more convenient
venue under 28 U.S.C. § 1404(a). Milbauer is opposed to
support its motion, Newspan contends that: its offices are
somewhere in “Houston, Texas;” that “all of
Defendants' books, records, and witnesses are located in
the Houston, Division;” the attorneys in this case
office in Houston; witnesses Newspan is “likely to
call” are located “in and around” the City
of Houston, Texas; the costs of subpoenas to secure the
attendance of witnesses will be higher if this case is tried
in Galveston; willing witnesses will have to travel more
miles to get to the Galveston Courthouse than the Houston
Courthouse; Newspan will have to provide meals and lodging
for witnesses if the case is tried in Galveston; both sides
will incur additional legal fees if this case is tried in
Galveston; and that cases are proceeding to trial faster in
Houston than in Galveston. To support the motion, Newspan
attached the Declaration of Mario Duenas, the President of
Newspan. Dkt. 19-1. However, that declaration is based almost
entirely on statements and conclusions that Mr. Duenas has
heard from his attorneys about the case, and it is
substantially duplicative of the motion to transfer itself.
docket control order has been entered in this case, and trial
is set for March 2018.
FOR CONVENIENCE TRANSFERS
U.S.C. § 1404(a) allows a district court to transfer a
civil action “for the convenience of parties and
witnesses, in the interest of justice ... to any other
district or division where it might have been brought.”
The statute is intended to save “time, energy, and
money while at the same time protecting litigants, witnesses,
and the public against unnecessary inconvenience.”
Republic Capital Dev. Grp., L.L.C. v. A.G. Dev. Grp.,
Inc., No. H-05-1714, 2005 WL 3465728, at *8 (S.D. Tex.
Dec. 19, 2005). Motions to transfer venue under §
1404(a) are committed to the sound discretion of the district
court. Jarvis Christian College v. Exxon Corp., 845
F.2d 523, 528 (5th Cir. 1988). The party seeking transfer has
the burden of showing good cause for the transfer. In re
Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir.
2008) (en banc). The burden on the movant is
“significant, ” and for a transfer to be granted,
the transferee venue must be “clearly more convenient
than the venue chosen by the plaintiff.” Id.
threshold question for a district court considering a motion
to transfer venue under 28 U.S.C. 1404(a) is whether the suit
could have been filed in movant's desired transfer venue.
In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir.
2004); see also Wells v. Abe's Boat Rentals
Inc., No. CIV.A. H-13-1112, 2014 WL 29590, at *1 (S.D.
Tex. Jan. 3, 2014). The parties agree that the Southern
District of Texas is the proper venue for this dispute, and
Plaintiff does not dispute that the case could have been
brought within the Houston Division.
the Court must determine whether on balance the transfer
would serve “the convenience of parties and
witnesses” and “the interest of justice”
under 28 U.S.C. §1404(a) by weighing a number of private
and public interest factors. In re Volkswagen Am.,
Inc., 545 F.3d 304, 315 (5th Cir. 2008). 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. No one single factor is given dispositive
weight. See Wells, 2014 WL 29590 at *1 (quoting
Action Indus., Inc. v. U.S. Fidelity & Guar.
Co., 258 F.3d 337, 340 (5th Cir. 2004)). The Court
analyzes these factors below.
Court first considers the private interest factors: relative
ease of access to sources of proof; the availability of
compulsory process to secure the attendance of witnesses; the
cost of attendance for willing witnesses; and all other
practical problems that make trial of a case easy,
expeditious and inexpensive.
is relatively little actual evidence brought forward to
support the motion to transfer. For example, Newspan does not
specify the address of the office from which the “books
and records” it plans to use will originate, nor does
it explain how transferring these “books and
records” to the Houston Courthouse, located in the
midst of a congested city with construction, traffic snarls,
and limited parking, is “clearly more convenient”
than transferring them to the Galveston Courthouse, which has
free parking and notably less traffic congestion and
construction. Similarly, there is no actual evidence about
Newspan's planned trial witnesses, what they may say,
whether they will indeed need to stay in either Houston or
Galveston hotels, and what the attendant costs may be.
Although Newspan makes mention of witnesses, it has not shown
the likelihood that any of such witnesses may actually be
called at trial, or the relevance of their testimony.
Compare, e.g., Grayson v. Wood Group PSN, Inc, No.
3:15-cv-0035, 2017 WL 914993 (S.D. Tex. March 8, 2017)
(listing the names, addresses, job descriptions, and
potential relevance at trial of several proposed witnesses,
and discussing whether each is within the subpoena power of
the various federal courts). The Court also notes that, other
than mere distances, there is no actual evidence about the
relative convenience of travel for the witnesses, the cost of
transportation, or the disruption of their lives if the case
were in Houston versus Galveston. Given the relatively close
distances, and taking judicial notice of the realities of
traffic conditions and construction in the greater
Galveston/Houston metropolitan area, this is just not enough.
the Court considers the public interest concerns, including
the administrative difficulties flowing from court
congestion, the local interest in having localized interests
decided at home, the familiarity of the forum with the law
that will govern the case, and the avoidance of unnecessary
problems of conflict of laws of the application of foreign
law. As to these factors, Newspan cites the anecdotal
experience of its counsel with one case in the Houston
Division to contend that cases proceed to trial faster in
Houston than in Galveston. Again, this is not just enough.
full consideration of the motion, the briefing in response,
and the record of this case as a whole, the Court finds that
Newspan has failed to carry its burden of showing that