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Brown v. Exactech, Inc.

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

December 8, 2017

ROBERT B. BROWN, Plaintiff,
v.
EXACTECH, INC., and EXACTECH US, INC., Defendants.

          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. 17), filed September 27, 2017. United States District Judge Reed O'Connor referred this motion to the undersigned for determination or recommendation by Order entered December 5, 2017. ECF No. 28. After consideration of the pleadings and the applicable law, the undersigned RECOMMENDS that Judge O'Connor GRANT Defendant's Motion to Transfer Venue.

         BACKGROUND

         Plaintiff Robert B. Brown (“Brown”) brings a number of products liability claims against Defendants Exactech, Inc., and Exactech US, Inc. (collectively, “Exactech”). ECF No. 1 at 1. He asserts his claims for relief as a result of injuries suffered from an allegedly defective hip replacement system, the “AcuMatch M-Series Femoral Stem Component” (the “Device”). Id. Exactech manufactured and distributed the Device, which Dr. Brian Covino implanted in Brown during a total hip arthroplasty procedure on September 14, 2001. Id. at 3, 10. According to Brown's Complaint, the Device broke in half while Brown was exiting his vehicle on June 5, 2016. ECF No. 1 at 11; but see ECF No. 21 at 3 (in which Brown asserts that he was hospitalized due to his injury on May 30, 2016). He was admitted to Baylor Scott & White All Saints Medical Center in Fort Worth, where he had a total hip revision surgery. Id.; No. 17 at 4. Brown has possession of the broken Device. ECF No. 1 at 11.

         Brown brought this lawsuit against Exactech in the Northern District of Texas, Fort Worth Division. ECF No. 1. Brown is currently a resident of Maryville, Blount County, Tennessee, though he was a resident of Forth Worth when the Device broke. Id. at 2. Both Exactech, Inc., and Exactech US, Inc., are resident corporations of Florida, where they have their principal places of business. Id. Exactech has moved to transfer this case to either the Eastern District of Tennessee or the Northern District of Florida under 28 U.S.C. § 1404, contending that venue is more appropriate in either of those locations. ECF No. 17 at 1. Exactech argues within its Motion that Tennessee state substantive law applies. Id. at 16. Brown submits in response that a transfer of venue may be appropriate, but he argues that the transferee court should apply Texas state law, rather than that of Tennessee, to his case. ECF No. 21 at 1-2.

         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 Eastern District of Tennessee or the Northern District of Florida. “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 Eastern District of Tennessee, both because Exactech is subject to suit in Tennessee and is thus deemed a resident of Tennessee, satisfying 28 U.S.C. § 1391(a)(1), and because a substantial part of the events giving rise to the claim occurred in Tennessee, satisfying 28 U.S.C. § 1391(a)(2). Venue is also proper in the Northern District of Florida, both because Exactech is a resident of Florida, satisfying 28 U.S.C. § 1391(a)(1), and because a substantial part of the events giving rise to the claim occurred in Florida, 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.). Brown brings this suit outside his home venue of Tennessee, 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. Courts sometimes include in the private interest factors three additional factors: “(5) the place of the alleged wrong; (6) the possibility of delay and prejudice if the case is transferred; and (7) the plaintiff's right to choose its forum.” See DataTreasury Corp. v. First Data Corp., 243 F.Supp.2d 591, 593 (N.D. Tex. 2003) (Kaplan, M.J.); Spiegelberg v. Collegiate Licensing Co., 402 F.Supp.2d 786, 792 (S.D. Tex. 2005). However, the last of these factors, the plaintiff's right to choose its forum, is not an independent factor but instead relates to the burden of proof. In re Volkswagen of Am., 545 F.3d at 314 n.10.

         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. at 315. The undersigned notes that Brown does not put forward any arguments on the public or private interest factors, except to argue that Texas substantive law should apply to his case, in opposition to Exactech's argument on the third public interest factor. ECF Nos. 21 at 1-2 and 17 at 16.

         I. The private interest factors favor transfer to Tennessee.

         Of the private interest factors, three weigh in favor of transfer to Tennessee, two weigh in favor of transfer to Florida, and two are neutral.

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


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