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 Defendants' Phillip King and Michael
Looney Trucking, LLC's Opposed Motion to Transfer Venue,
filed on October 25, 2019 (Dkt. No. 3), and Plaintiff's
Response to Defendants' Motion to Transfer Venue, filed
on November 4, 2019 (Dkt. No. 9). The Defendants did not file
a Reply. On November 5, 2019, the District Court referred the
above motion 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.
12:45 p.m. on May 11, 2019, Eric Frischhertz, M.D.
(“Plaintiff”), a cardiologist practicing and
residing in Austin, Texas, was driving northbound in the 900
block of Interstate Highway 35 (“IH-35”) in
Belton, Texas. At the same time, Phillip King
(“King”), an Arkansas citizen and employee of
Michael Looney Trucking, LLC (“Looney”), an
Arkansas corporation, was driving a tractor trailer
northbound on IH-35 a few vehicles ahead of Plaintiff.
Plaintiff alleges that King failed to slow down properly when
traffic ahead of him slowed, and negligently crashed into two
vehicles in front of him. After this initial collision,
Plaintiff alleges that Sokol Beli (“Beli”), a
Michigan citizen and employee of World Class Express, Inc.
(“Express”), a Michigan corporation, who was
driving a tractor trailer a few vehicles behind Plaintiff,
also failed to stop safely and struck Plaintiff's
vehicle, propelling it into the center median and causing
Plaintiff to suffer serious personal injuries. Plaintiff
alleges that he was taken by ambulance to an emergency room
and suffered “serious injuries with ongoing symptoms
and medical treatment.” Dkt. No. 1-2 at p. 7.
August 30, 2019, Plaintiff filed this negligence lawsuit
against King, Beli, Looney, and Express in Travis County
District Court, alleging that the collision was proximately
caused by the negligence of the Defendants and was the
proximate cause of Plaintiff's injuries and damages.
See Frischhertz v. King, D-1-GN-19-005721
(98th Dist. Ct., Travis County, Tex. Aug. 30,
2019). On October 17, 2019, Defendants King and Looney
(hereinafter “Defendants”) removed this case to
federal court on the basis of diversity jurisdiction pursuant
to 28 U.S.C. § 1332 as there is complete diversity
between the parties.
have filed the instant Motion to Transfer Venue pursuant to
28 U.S.C. § 1404(a), arguing that the lawsuit should be
transferred to the Waco Division of the Western District of
Texas because the accident occurred in Belton, Texas, which
is located in the Waco Division. Although Belton is almost
equidistant between Waco and Austin, Defendants argue that it
would be more convenient for the witnesses and parties to
litigate this case in the Waco Division rather than the
Austin Division. Plaintiff disagrees and argues that
Defendants have not met their burden to show that this case
should be transferred to the Waco Division. The Court agrees.
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). 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).
a plaintiff has the privilege of choosing the venue in which
to file, the defendant bears the burden of proving that a
transfer of venue would be “clearly” more
convenient for the parties and witnesses and in the interest
of justice. See In re Volkswagen of Am. Inc., 545
F.3d 305, 315 (5th Cir. 2008) (“Volkswagen
II”); Schexnider v. McDermott Int'l,
Inc., 817 F.2d 1159, 1163 (5th Cir. 1987) (stating that
“there is ordinarily a strong presumption in favor of
the plaintiff's choice of forum that may be overcome only
when the private and public interest factors clearly point
towards trial in the alternative forum”). The defendant
must show “good cause” for the transfer.
Volkswagen II, 545 F.3d at 315.
When viewed in the context of § 1404(a), 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.” Thus, when the transferee venue is not
clearly more convenient than the venue chosen by the
plaintiff, the plaintiff's choice should be respected.
When the movant demonstrates that the transferee venue is
clearly more convenient, however, it has shown good cause and
the district court should therefore grant the transfer.
preliminary question under § 1404(a) is whether the
action “might have been brought” in the
destination venue. Volkswagen II, 545 F.3d at 312.
After determining the suit could have been filed in the
destination venue, the Court weighs the parties' private
interests in convenience and the public interest in the fair
administration of justice. Id. at 315. The private
interest factors include:
1. the relative ease of access to sources of proof;
2. the availability of compulsory process to secure the