United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
this Court are Defendant's Motion to Transfer Venue and
Consolidate Related Cases, on April 4, 2019 (Dkt. No. 3);
Plaintiff's Emergency Motion to Remand, filed on April
17, 2019 (Dkt. No. 6); and Defendant's Response to
Plaintiff's Emergency Motion to Remand filed on May 1,
2019 (Dkt. No. 8). On July 17, 2019, the District Court
referred the above motions and related filings to the
undersigned Magistrate Judge for Report and Recommendation
pursuant to 28 U.S.C. § 636(b), Federal Rule of Civil
Procedure 72, and Rule 1 of Appendix C of the Local Rules of
the United States District Court for the Western District of
Texas (“Local Rules”).
Rogerio Ribiero Dos Santos (“Plaintiff”), a
resident of Harris County, Texas, originally filed this
lawsuit against Air China Limited (“Air China”)
in Travis County Justice Court. See Dos Santos v. Air
China Limited, J5-CV-19-252151 (J.P. Ct., Pct. 5 Travis
County, Tex. Mar. 5, 2019). Plaintiff alleges that Air China
lost his luggage on an outbound flight from Houston, Texas to
the Republic of the Philippines on November 25, 2018, and
seeks $9, 700 in damages. Dkt. No.1-1 at p. 2. On April 4,
2019, Air China removed this case to the instant federal
court based on federal question jurisdiction under 28 U.S.C.
§ 1331. Air China contends that the state lawsuit is
preempted by the Montreal Convention Treaty
(“Treaty”). Dkt. No. 1 at p. 3.
addition to the instant lawsuit, Plaintiff also has filed a
related lawsuit against Air China in Harris County Justice
Court. See Dos Santos v. Air China Limited,
No.194200091726 (J.P. Ct., Pct. 4, Pl. 2 Harris County, Tex.
Feb. 28, 2019). The Harris County lawsuit alleges that Air
China lost Plaintiff's luggage on his return flight to
Houston and seeks $10, 000 in damages. Id. On April
4, 2019, Air China removed the Harris County lawsuit to the
Houston Division of the Southern District of Texas. See
Dos Santos v. Air China Limited, 4:19-CV-01226 (S.D.
Tex. April 4, 2019). On May 20, 2019, United States District
Judge Kenneth M. Hoyt denied Plaintiff's “Emergency
Motion to Remand.” See Dkt. No. 6 in 4:19-CV-01226.
Thus, the Harris County lawsuit remains pending in the
Southern District of Texas.
April 4, 2019, Air China filed the instant Motion to Transfer
Venue and Consolidate Related Cases, pursuant to Federal Rule
of Civil Procedure 42(a) and 28 U.S.C. § 1404(a),
arguing that the lawsuit should be transferred to the
Southern District of Texas and consolidated with the related
lawsuit pending there.
did not file a response to the Motion to Transfer Venue. On
April 17, 2019, however, Plaintiff filed an “Emergency
Motion to Remand” requesting that the case be remanded
to the Justice Court. Air China opposes the Motion to Remand,
arguing that the case was properly removed based on federal
Order of Motions
may exercise its discretion in determining the order in which
to address decisions not affecting the merits of a case.
Hill v. Keliher, 2019 WL 3837113, at *3 (S.D. Tex.
Aug. 14, 2019). Federal courts need not decide a motion to
remand a removed case before ruling on a motion to transfer
to another district. McPeters v. LexisNexis, a Division
of Reed Elsevier, Inc., 2011 WL 13253948, at *2 (W.D.
Tex. May 27, 2011) (quoting Huntsman Corp. v. Int'l
Risk Ins. Co., 2008 WL 1836384, at *3 (E.D. Tex. Apr.
22, 2008)). Rather, a court may decide a motion to transfer
to another district before ruling on other motions, and
deciding the motion to transfer first “is particularly
appropriate where a related suit is already pending in the
transferee district.” Hardwick v. Factor, 2011
WL 1831706, at *2 (S.D. Tex. May 9, 2011) (quoting
Doubletree Partners, L.P. v. Land Am. Am. Title Co.,
2008 WL 5119599, at *2 (N.D. Tex. Dec. 3, 2008)); see
also Tesoro Ref. & Mktg. Co. v. C.A.R. Enters., 2018
WL 6050603, at *8 (W.D. Tex. Nov. 19, 2018) (“[T]he
Court may decide to proceed with determining venue before
resolving the jurisdictional issue.”) (citing
Sinochem Int'l Co. v. Malaysia Int'l Shipping
Corp., 549 U.S. 422, 435-36 (2007)).
Court finds that it is appropriate to first address the
Motion to Transfer Venue before addressing the Motion to
Standard of Review
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.” 28 U.S.C.
§ 1404(a). It is well settled that the party seeking the
transfer of venue bears the burden of demonstrating that the
case should be transferred. Time, Inc. v. Manning,
366 F.2d 690, 698 (5th Cir. 1966). The decision whether to
transfer a case under § 1404(a) is a matter within the
district court's sound discretion. In re Volkswagen
of America, Inc., 545 F.3d 304, 311 (5th Cir. 2008).
preliminary question under § 1404 is whether the lawsuit
“might have been brought” in the destination
venue. Id. at 312. The Court must determine whether
the moving party has shown “good cause” for
transferring the case, reflecting the appropriate deference
to the plaintiff's choice of venue. Id. at 315.
To show good cause “means that a moving party, in order
to support its claim for a transfer, must satisfy the
statutory requirements and clearly demonstrate that a
transfer is “[f]or the convenience of parties and
witnesses, in the interest of justice.'”
Id. (quoting § 1404(a)).
determining whether a transfer is for the convenience of
parties and witnesses and in the interest of justice, courts
look to a series of private and public ...