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Eastep v. City of Odessa

United States District Court, W.D. Texas, Austin Division

June 12, 2017

RICKY EASTEP
v.
CITY OF ODESSA, OFFICER KENDRICK BARRAGAN, AND OFFICER GARY POTTER

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         Before the Court are: Defendants' Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), filed on March 22, 2017 (Dkt. No. 2); Plaintiff's Opposition to Defendants' Motion to Transfer Venue, filed on March 28, 2017 (Dkt. No. 4); and Defendants' Reply to Plaintiff's Opposition to Defendants' Motion to Transfer, filed on March 29, 2017 (Dkt. No. 6). The District Court referred the above-motion to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.

         I. GENERAL BACKGROUND

         This lawsuit arises of an incident that occurred on December 7, 2015 in Odessa, Texas. At the time, Plaintiff Ricky Eastep (“Eastep”) was a resident of an apartment complex located at 213 Carver Avenue, in Odessa, Texas. After returning to his apartment complex in the early morning hours of December 7, 2015, Eastep, who is a paraplegic, wheeled himself to the front door of his apartment and allegedly had a seizure. Defendants claim that Eastep had passed out because he was intoxicated. Regardless, a concerned neighbor called 9-1-1. Odessa Fire Department Medics responded to the 9-1-1 call and determined that Eastep did not need medical care and left the scene. Shortly thereafter, Odessa Police Department Officers Gary Potter and Kendrick Barragan (“Officers”), also responding to the 9-1-1 call, arrived at the scene and decided to arrest Eastep for public intoxication. Eastep alleges that while Officers Potter and Barragan were attempting to lift him out of his wheelchair and into the patrol car, they threw him on the ground breaking his femur in the process. The Odessa Fire Department Medics returned to the scene and transported Eastep to the local hospital. Eastep underwent surgery the following day and spent nine days in the hospital.

         On January 26, 2017, Eastep filed the instant civil rights lawsuit against the City of Odessa (“Odessa”) and Officers Potter and Barragan (collectively “Defendants”), alleging excessive force and unreasonable seizure and arrest in violation of 42 U.S.C. § 1983, as well as state claims under the Texas Tort Claims Act and for assault and battery.

         Defendants have now filed a Motion to Transfer this case from the Austin Division to the Midland-Odessa Division of the Western District of Texas pursuant to 28 U.S.C. § 1404(a). Eastep opposes the Motion to Transfer claiming that he “cannot be guaranteed a fair trial in the Midland-Odessa Division.”

         II. ANALYSIS

         A. Standard of Review on Motion to Transfer

          “For the convenience of the 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). Section 1404(a) “is intended to place discretion in the district court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.'” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). “There can be no question but that the district courts have broad discretion in deciding whether to order a transfer” under § 1404(a). In re Volkswagen of Am., Inc. (“Volkswagen II”), 545 F.3d 304, 313-15 (5th Cir. 2008) (internal quotation marks omitted), cert. denied, 555 U.S. 1172 (2009).

         The starting point on a motion for transfer of venue is determining whether the suit could have originally been filed in the destination venue. Id. at 312. If it could have, the focus shifts to whether the party requesting the transfer has demonstrated the “convenience of parties and witnesses” requires transfer of the action, considering various private and public interests. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1974). The private interest factors are: “(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 (“Volkswagen I”), 371 F.3d 201, 203 (5th Cir. 2004) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6 (1981)). The public interest factors are: “(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 [or in] the application of foreign law.” Id. Although the Gilbert factors are “appropriate for most transfer cases, they are not necessarily exhaustive or exclusive.” In fact, the Fifth Circuit has noted “none . . . can be said to be of dispositive weight.” Volkswagen II, 545 F.3d at 313-15 (internal quotations omitted). Despite the wide array of private and public concerns, a court must engage in a “flexible and individualized analysis” in ruling on a motion to transfer venue. Stewart, 487 U.S. at 29.

         The plaintiff's choice of venue is not a factor in this analysis, but rather contributes to the defendant's burden to show good cause for the transfer. Volkswagen II, 545 F.3d at 313 & 314 n.10 (“[W]hile a plaintiff has the privilege of filing his claims in any judicial division appropriate under the general venue statute, § 1404(a) tempers the effects of the exercise of this privilege.”). However, “when the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff's choice should be respected.” Id. at 315. Moreover, “when a plaintiff is not a resident of the chosen forum, or the operative facts underlying the case did not occur in the chosen forum, the court will not give as much deference to a plaintiff's choice.” Apparel Prod. Servs. Inc. v. Transportes De Carga Fema, S.A., 546 F.Supp.2d 451, 453 (S.D. Tex. 2008).

         Transfer under § 1404(a) requires a lesser showing of inconvenience than transfer based on forum non conveniens. Volkswagen II, 545 F.3d at 314. The movant need not show the Gilbert factors substantially outweigh the plaintiff's choice of venue-it is enough to show the new venue is clearly more convenient than the original one. Finally, the Court notes that the “§ 1404(a) factors apply as much to transfers between divisions of the same district as to transfers from one district to another.” In re Radmax, Limited, 720 F.3d 285, 288 (5th Cir. 2013).

         B. ...


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