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Modisett v. Delek Refining, Ltd.

United States District Court, E.D. Texas, Marshall Division

June 5, 2019




         This is a collective action filed by six named Plaintiffs (“Plaintiffs”) against Defendant Delek Refining, Ltd. (“Delek”) under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), seeking to represent all other similarly situated past and present employees … who have not been paid their wages and overtime wages for all time worked in excess of 40 hours per workweek.” Coll. Act. Compl., (Dkt. No. 1 at ¶ 2). In their Complaint, Plaintiffs “seek to represent similarly situated current or former employees … at the Delek refineries located in Tyler, Texas, Big Spring, Texas, El Dorado, Arkansas, and Krotz Springs, Louisiana. (Id. at ¶ 5).

         Delek points out that in Plaintiffs' motion for notice to potential plaintiffs (Dkt. No. 17), Plaintiffs now only seek to represent current or former employees at the Delek refinery located in Tyler. (Dkt. No. 24 at 3). Because all the events, parties, witnesses, documents, and physical evidence are located in the Tyler Division, Delek moves to transfer venue from the Marshall Division to the Tyler Division of the Eastern District of Texas pursuant to 28 U.S.C. § 1404(a). (Id.). This argument overlooks the rule that transfer motions are decided on the basis of the facts and record as it stood at the time the lawsuit was filed. This case has not been limited to only employees of the Defendant's Tyler refinery.


         A. Proper Venue

         The venue statute permits a district court to transfer a case to another district or division “[f]or the convenience of parties and witnesses” and “in the interests of justice.” 28 U.S.C. § 1404(a). The preliminary question under § 1404(a) is whether the case “might have been brought” in the destination venue. In re Volkswagen of Am., Inc., 545 F.3d 304, 312 (5th Cir. 2008) (“Volkswagen II”); In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). The parties do not dispute that the case could have been brought in either the Tyler Division or the Marshall Division of the Eastern District of Texas.

         B. Defendants' Good Cause Burden

         Once the court resolves the preliminary jurisdiction question, the movant must meet its “good cause” burden. Volkswagen II, 545 F.3d at 315 (emphasis added). The movant meets its good cause burden by demonstrating that the transferee venue is clearly more convenient than the venue chosen by the plaintiff. Id. “[W]hen the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff's choice should be respected.” Id. The good cause burden “reflects the appropriate deference to which the plaintiff's choice of venue is entitled.” Id.[1]

         “[T]he determination of ‘convenience' turns on a number of private and public interest factors, none of which are given dispositive weight.” Volkswagen I, 371 F.3d at 203 (quoting § 1404(a)). Although these factors “are appropriate for most transfer cases, they are not necessarily exhaustive or exclusive.” Volkswagen II, 545 F.3d at 315. Unless the balance of factors is strongly in favor of the defendant, the plaintiff's choice in forum should be respected. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). The private and public interest factors apply 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). Ultimately, it is within a district court's sound discretion to transfer venue under § 1404(a), but the court must exercise its discretion in light of the particular circumstances of the case. Hanby v. Shell Oil Co., 144 F.Supp.2d 673, 676 (E.D. Tex. 2001).

         1. Private Interest Factors

         The private factors 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.” Volkswagen II, 545 F.3d at 315 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)).

         a. Sources of Proof

         For this factor to weigh in favor of transfer, the movant must demonstrate that transfer will result in more convenient access to sources of proof. Remmers v. United States, No. CIV. A. 1:09-CV-345, 2009 WL 3617597, at *4 (E.D. Tex. Oct. 28, 2009). Courts analyze this factor in light of the distance that documents, or other evidence, must be transported from their existing location to the trial venue. Uniloc USA, Inc. v. Activision Blizzard, Inc., No. 6:13-CV-256, 2014 WL 11609813, at *2 (E.D. Tex. July 16, 2014) (citing Volkswagen II, 545 F.3d at 316) (noting that this factor is still relevant even if documents are stored electronically). This factor turns upon which party “most probably [has] the greater volume of documents relevant to the litigation and their presumed location in relation to the transferee and transferor venues.” Id. (citing In re Nintendo Co., 589 F.3d 1194, 1199 (Fed. Cir. 2009); In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009); and Volkswagen II, 545 F.3d at 314-15). “Presumably, the bulk of the discovery material relating to a corporate party is located at the corporate headquarters.” Uniloc USA, 2014 WL 11609813, at *2 (citing In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010)). The moving party must identify sources of proof with enough specificity that a court can determine whether transfer will increase the convenience of the parties. J2 Global Commc'ns, Inc. v. Proctus IP Solutions, Inc., No. 6:08-CV-211, 2009 WL 440525, at *2 (E.D. Tex. Feb. 20, 2009). That access to some sources of proof presents a lesser inconvenience now than it might have absent recent developments does not render this factor superfluous.” Volkswagen II, 545 F.3d at 316.

         Delek argues that this factor weighs in favor of transfer because “[a]long with the events and parties, all of the documents and physical evidence of this case are located in the Tyler Division.” (Dkt. No. 24 at 7). Delek submits an affidavit from an HR manager, Haylee James, listing four employees as ...

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