United States District Court, E.D. Texas, Marshall Division
MEMORANDUM OPINION AND ORDER
GILSTRAP, UNITED STATES DISTRICT JUDGE
the Court is Defendant Cardinal Health 200, LLC's
("Cardinal Health") Section 1404(a)&(b) Motion
to Transfer Venue (the "Motion"). (Dkt. No. 11.)
The Motion seeks an intra-district transfer from the Marshall
Division to the Tyler Division. Having considered the
parties' briefing and the relevant case law, the Court is
of the opinion that the Motion should be and hereby is
GRANTED to the extent discussed herein.
David Potter ("Potter"), who is currently 70 years
old, was employed as a mold maker at Cardinal Health's
facility in Jacksonville, TX. (Dkt. No. 20 ¶¶ 7,
11, 12.) Cardinal Health terminated Potter's employment
on August 31, 2018. (Id. ¶¶ 34, 42.)
alleges that Cardinal Health violated the Age Discrimination
in Employment Act of 1967 ("ADEA"), 29 U.S.C.
§ 621 et seq., by terminating his employment
based on his age. (Id. ¶ 1.) Additionally,
Potter alleges that Cardinal Health violated the Fair Labor
Standards Act ("FLSA") by "fail[ing] to pay
him ... for continuous workday activities which are integral
and indispensable to [Cardinal Health's] principal
activities." (Id. ¶ 4.) Potter seeks,
inter alia, unpaid overtime wages for such violation.
(Id.) Potter also alleges that Cardinal Health
retaliated against him in violation of 28 U.S.C. §§
215(a)(3) and 216(b) of the FLSA. (Id.) II. Legal
Standard Section 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 or to any district or division to which all parties
have consented." 28 U.S.C. § 1404(a). This inquiry
"appl[ies] as much to transfers between divisions of the
same district as to transfers from one district to
another." In re Radmax, Ltd., 720 F.3d 285, 288
(5th Cir. 2013) (internal citation omitted).
determining whether to transfer venue, the court must first
determine "whether the judicial district [or division]
to which transfer is sought would have been a district [or
division] in which the claim could have been filed."
In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir.
2004) (“Volkswagen I”). Civil actions
under the ADEA and the FLSA may be brought in "a
judicial district (1) in which any defendant resides, if all
defendants are residents of the State in which the district
is located; (2) 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; or (3) in which any defendant is subject to the
court's personal jurisdiction with respect to such
action." 28. U.S.C. § 1391(b); see also Tucker
v. U.S. Dep 't of Army, 42 F.3d 641 (5th Cir. 1994)
(applying § 1391 in ADEA case); Owens v. Neovia
Logistics LLC, No. 4:17-cv-107-ALM, 2017 WL 2813996 at
*2 (E.D. Tex. June 29, 2017) (applying § 1391 in FLSA
this threshold inquiry is met, the court analyzes public and
private factors relating to the convenience of parties and
witnesses as well as the interests of particular venues in
hearing the case. Volkswagen I, 371 F.3d at 203. 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." Volkswagen I, 371 F.3d at 203
(internal citation omitted). The public 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 of the
application of foreign law." Id. These factors
are decided based on "the situation which existed when
suit was instituted." Hoffman v. Blaski, 363
U.S. 335, 343 (1960). Though the private and public factors
apply to most transfer cases, "they are not necessarily
exhaustive or exclusive," and no single factor is
dispositive. In re Volkswagen of Am., Inc., 545 F.3d
304, 314- 15 (5th Cir. 2008) ("Volkswagen IF).
prevail on a motion to transfer under § 1404(a), the
movant must show that transfer is "clearly more
convenient" than the venue chosen by the plaintiff.
Id. at 315. Absent such a showing, the plaintiffs
choice of venue is to be respected. Id. When
deciding a motion to transfer under § 1404(a), the court
may consider undisputed facts outside of the pleadings such
as affidavits or declarations, but it must draw all
reasonable inferences and resolve factual conflicts in favor
of the non-moving party. See Sleepy Lagoon, Ltd., v.
Tower Grp., Inc., 809 F.Supp.2d 1300, 1306 (N.D. Okla.
2011); see also Cooper v. Farmers New Century Ins.
Co., 593 F.Supp.2d 14, 18-19 (D.D.C. 2008).
are ordinarily allowed to select whatever forum they consider
most advantageous (consistent with jurisdictional and venue
limitations), [and the Supreme Court has] termed their
selection 'the plaintiffs venue privilege.'"
Ail. Marine Const. Co. v. U.S. Dist. Court for W. Dist.
of Tex., 571 U.S. 49, 63 (2013) (citing Van Dusen v.
Barrack, 376 U.S. 612, 635 (1964)). In the Fifth
Circuit, the plaintiffs "venue privilege" has been
seen as contributing to the defendant's elevated burden
of proving that the transferee venue is "clearly more
convenient" than the transferor venue. See
Volkswagen II, 545 F.3d at 315; accord In re
Genentech, Inc., 566 F.3d 1338, 1342 (Fed. Cir. 2009)
(applying Fifth Circuit law); In re TS Tech USA
Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008) (same).
However, "the traditional deference given to plaintiffs
choice of forum ... is less" for intra-district
transfers. Radmax, 720 F.3d at 289 (2013); see
also Volkswagen II, 545 F.3d at 313 (explaining
that "while 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").
preliminary inquiry in the § 1404(a) analysis is whether
this lawsuit could have been brought in the division to which
the movant seeks a transfer. VolkswagenI, 371 F.3d
at 203. Here, the parties do not dispute that suit could have
been brought in the Tyler Division. Accordingly, the Court
finds this preliminary inquiry satisfied. The Court now
proceeds to analyze the private and public factors considered
in determining whether transfer pursuant to § 1404(a) is
Private Interest Factors
Ease of Access to Sources of Proof
considering the relative ease of access to sources of proof,
a court looks to where documentary evidence, such as
documents and physical evidence, are stored. Volkswagen
II, 545 F.3d at 316. For this factor to weigh in favor
of transfer, Cardinal Health must show that transfer to the
Tyler Division will result in clearly more convenient access
to sources of proof. See Diem LLC v. BigCommerce,
Inc., No. 6:17-cv-186, 2017 WL 6279907 at *2 (E.D. Tex.
Dec. 28, 2017).
Health argues that since the "facility where Potter
worked is in Jacksonville, Texas (74 miles from Marshall; 29
miles from Tyler)," "[d]ocuments and information
relevant to Potter's employment with Cardinal Health are
in Jacksonville." (Dkt. No. 11 at 2 (citing Dkt. No.
11-1 (Declaration of Timothy Scott Martin on behalf of