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Frischhertz v. King

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

December 5, 2019

ERIC FRISCHHERTZ, Plaintiff
v.
PHILLIP KING, MICHAEL LOONEY TRUCKING, LLC, SOKOL BELI, AND WORLD CLASS EXPRESS, INC., Defendants

          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 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.

         I. BACKGROUND

         At 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.

         On 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.

         Defendants 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.

         II. 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). 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).

         Because 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.

Id.

         The 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 ...

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