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Dos Santos v. Air China Limited

United States District Court, W.D. Texas, Austin Division

August 21, 2019

ROGERIO RIBIERO DOS SANTOS, Plaintiff
v.
AIR CHINA LIMITED, Defendant

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         Before 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”).

         I. BACKGROUND

         Plaintiff 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.

         In 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.

         On 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.

         Plaintiff 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 question jurisdiction.

         II. ANALYSIS

         A. Order of Motions

         A court 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)).

         The Court finds that it is appropriate to first address the Motion to Transfer Venue before addressing the Motion to Remand.

         B. Standard of Review

         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.” 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).

         The 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)).

         In 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 ...


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