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Neylon v. BNSF Railway Co.

United States District Court, N.D. Texas, Fort Worth Division

November 7, 2017

JEFFREY NEYLON, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HAL R. RAY, JR., UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant's Motion to Transfer Venue (ECF No. 16), filed August 25, 2017. United States District Judge Reed O'Connor referred this motion to the undersigned for determination or recommendation by Order entered October 26, 2017. ECF No. 30. After consideration of the pleadings and the applicable law, the undersigned RECOMMENDS that Judge O'Connor GRANT Defendant's Motion to Transfer Venue and TRANSFER this case to the Lincoln Division of the District of Nebraska.

         BACKGROUND

         Plaintiff Jeffrey Neylon (“Neylon”) alleges that Defendant BNSF Railway Company (“BNSF”) terminated him from his employment as a conductor in Lincoln, Nebraska in violation of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. ECF Nos. 16 at 1 and 18 at 1. Neylon claims that he suffered an injury while climbing onto a train in June 2015. ECF No. 1 at 2. He did not believe he was injured at the time and only brought his injury to the attention of BNSF on November 4, 2017, after a physician diagnosed him with tendinitis. Id.; ECF No. 16 at 1.

         On January 4, 2017, BNSF held an investigation, which is “an on-property hearing provided pursuant to the collective bargaining agreement applicable to Neylon, ” at its Heartland Division in Lincoln, Nebraska. ECF No. 16 at 2. In attendance at the hearing were Neylon; Ronald Trauernicht, Neylon's local union chairman; Donald Smith, BNSF's Assistant Terminal Superintendent for Lincoln; Brian Anders, a Terminal Road Foreman in Lincoln; Dave McCoy, a Conductor and the Vice Local Chairman in the South Division of the 305 Local of Neylon's union; and Allen Wolfe, the Terminal Superintendent in Lincoln. ECF No. 17-1. After this hearing, on January 17, 2017, BNSF sent Neylon a Notice of Dismissal, which informed that he was terminated from his position because he failed to report his injury in a timely fashion. ECF Nos. 16 at 2-3 and 18 at 3.

         Neylon then brought this lawsuit against BNSF in the district and division of its headquarters, Fort Worth, Texas. ECF No. 1 at 2. Neylon is a resident of Nebraska. Id. BNSF has now moved to transfer this case to the Lincoln Division of the District of Nebraska under 28 U.S.C. § 1404, contending that venue is more appropriate there as the events giving rise to the suit took place there, and Neylon and most of the witnesses reside there. ECF No. 16 at 1. Neylon argues in response that he seeks to hold BNSF's officers who reside and work in the Northern District of Texas accountable and will be unable to compel those officers to attend trial if the Court transfers the case to Nebraska. ECF No. 18 at 2.

         LEGAL STANDARD AND ANALYSIS

         A district court may transfer any civil case “[f]or the convenience of the parties and witnesses, in the interest of justice . . . to any other district or division where it might have been brought. . . .” 28 U.S.C. § 1404(a). Such a transfer is not a transfer between forums but between venues. In re Volkswagen of Am. Inc., 545 F.3d 304, 308 n.2 (5th Cir. 2008) (en banc).

         The Court must first determine whether the suit could have been properly brought in the District of Nebraska. “A civil action may be brought in (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; [or] (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated. . . .” 28 U.S.C. § 1391(a). For venue purposes, a defendant corporation is deemed to reside “in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question.” Id. § 1391(c)(2). Venue is proper in the District of Nebraska both because BNSF is subject to suit in Nebraska and is thus deemed a resident of Nebraska, satisfying 28 U.S.C. § 1391(a)(1), and because a substantial part of the events giving rise to the claim occurred in Nebraska, satisfying 28 U.S.C. § 1391(a)(2).

         The party moving for transfer of venue bears the burden of proving by a preponderance of the evidence that transfer is appropriate. Bank One, N.A. v. Euro-Alamo Investments, Inc., 211 F.Supp.2d 808, 812 (N.D. Tex. 2002) (Fitzwater, J.). “This requires a particularized showing regarding why transfer is necessary, including identification of key witnesses and the general content of their testimony.” Id. The moving party has the burden in reflection of “the appropriate deference to which the plaintiff's choice of venue is entitled.” In re Volkswagen of Am., 545 F.3d at 315. The plaintiff's choice of venue is also “a factor to be considered but in and of itself it is neither conclusive nor determinative.” In re Horseshoe Entm't, 337 F.3d 429, 434-35 (5th Cir. 2003). The weight accorded the choice of venue is diminished where the plaintiff brings suit outside his home forum. Santellano v. The City of Goldthwaite, 3:10-CV-2533-D, 2011 WL 1429080, at *2 (N.D. Tex. Apr. 14, 2011) (Fitzwater, J.) (citing Alexander & Alexander, Inc. v. Donald F. Muldoon & Co., 685 F.Supp. 346, 349 (S.D.N.Y.1988)); see also TransFirst Group, Inc. v. Magliarditi, 237 F.Supp.3d 444, 459 (N.D. Tex. 2017) (Lindsay, J.). Neylon brings this suit outside his home venue of Nebraska, so his choice of venue carries less weight.

         When considering a motion to transfer venue, a district court must consider a number of private and public interest factors, “none of which can be said to be of dispositive weight.” In re Volkswagen of Am., 545 F.3d at 315 (quoting Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004)). The private 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.” Id. 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.

         I. The private interest factors favor transfer

         Of the private interest factors, three weigh in favor of transfer, and one does not.

         A. Relative ease of access to sources of proof ...


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