Alicia Jacoby v. Trek Bicycle Corporation - Document 20
MEMORANDUM OPINION and ORDER - denying 8 Motion to Change Venue or in the Alternative Motion to Transfer Venue. Treks Motion to Reconsider Judge Clarks Order Transferring Venue is DENIED. (Dkt. No. 8.) Treks Motion to Transfer Venue from the Marshall Division to the Lufkin Division is also DENIED.. Signed by Judge T. John Ward on 7/28/11. (ehs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
ALICIA JACOBY, Individually and as
Guardian of the Person and Estate of
MATTHEW and as Next Friend of L.J., a
Minor; and ANGELA JACOBY,
TREK BICYCLE CORP.,
§ CIVIL ACTION NO. 2:11-cv-124-TJW
MEMORANDUM OPINION AND ORDER
Before the Court is Trek Bicycle Corporation’s (“Trek” or “Defendant”) Motion for Relief
from Order Granting Plaintiffs’ Motion to Change Venue or in the Alternative Motion to Transfer
Venue. (Dkt. No. 8.) For the following reasons, both motions are DENIED.
The facts underlying the bases for these motions and the procedural history of this case are
unique. The underlying complaint arises out of an accident on a Trek bicycle by Matthew Jacoby
in Nacogdoches, Texas. This lawsuit was brought against Trek by Jacoby’s representative and
Jacoby’s family members (collectively “Plaintiffs”). Although the Plaintiffs meant to file the
lawsuit in the Marshall Division of the Eastern District of Texas, Plaintiffs accidently and
mistakenly filed the lawsuit in the Lufkin Division.1 Plaintiffs apparently quickly realized the
To the extent there is any dispute whether Plaintiffs’ filing in Lufkin was an accident, this Court
finds that Plaintiffs did in fact accidently and mistakenly file this lawsuit in the Lufkin Division
instead of the Marshall Division. This is clearly evidenced by the surrounding circumstances in
mistake and filed an “unopposed” motion to transfer to the Marshall Division six days after filing
their complaint, and Plaintiffs stated in the motion that they had made a mistake by filing in the
Lufkin Division. (Dkt. No. 3.) This “unopposed” motion to transfer was filed before Trek had
been served or answered in this case. Within two days of the motion to transfer, Judge Clark
transferred the case to the Marshall Division for primarily two reasons: (1) since the motion was
labeled “unopposed,” Judge Clark assumed that Trek agreed with the motion (Dkt. No. 4, at 3);
and (2) Judge Clark observed that even if the Court denied the transfer, since Trek had not been
served or answered, Plaintiffs could have instead voluntarily dismissed the case without prejudice
and re-filed in the Marshall Division—so any prejudice to Trek would be minimal (Dkt. No. 4, at 3
After the case was transferred to the Marshall Division, Trek later answered and
simultaneously filed this motion to vacate Judge Clark’s Order or in the alternative transfer this
case to the Lufkin Division under 28 U.S.C. 1404(a).
Trek’s Motion to Vacate Judge Clark’s Order Transferring this Case to the
Marshall Division (Motion to Reconsider)
The Court first addresses Trek’s motion to vacate Judge Clark’s Order which originally
transferred this case from the Lufkin Division to the Marshall Division, and the Court DENIES
this case. First, Plaintiffs’ motion to transfer to the Marshall Division, which was filed less than a
week after Plaintiffs filed their complaint in the Lufkin Division, admitted to the mistake. (Dkt.
No. 3.) Second, Plaintiffs’ original complaint, in the “Parties and Jurisdiction” section,
repeatedly stated why jurisdiction and/or venue was proper in the “Marshall Division,” which
would be abnormal if Plaintiffs meant to file in the Lufkin Division. (Dkt. No. 1.)
Neither party correctly articulates the standard this Court should apply for this motion, as
the motion is essentially a motion to reconsider. Trek originally argued it was entitled to relief
under Federal Rule of Civil Procedure 60(b), but Trek appeared to retreat from this argument in its
Reply Brief because Rule 60(b) only applies to final judgments or orders, and an order transferring
venue is interlocutory. See Zimzores v. Veterans Admin., 778 F.2d 264, 266 (5th Cir. 1985)
(discussing how Rule 60(b) applies to final judgments or orders and not interlocutory orders). In
Trek’s Reply Brief, Trek argues the Court may use its “inherent power” to vacate or reconsider
Judge Clark’s Order, which this Court interprets as a motion to reconsider the Order. (Dkt. No.
13, at 1-4.) The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 (5th Cir. 2004). Before the
entry to final judgment, however, the Court has power to reconsider or reverse an interlocutory
order at any time under Federal Rule of Civil Procedure 54(b). It is this Court’s practice to
consider motions to reconsider interlocutory orders under the standard of Federal Rule of Civil
Procedure 59(e). See, e.g., Wi-Lan, Inc. v. Acer, Inc., Case No. 2:07-CV-473-TJW-CE, 2010 WL
5559546, at *2 (E.D. Tex. Dec. 30, 2010) (Ward, J.). See also T-M Vacuum Prods., Inc. v.
TAISC, Inc., Civ. No. H-07-4108, 2008 WL 2785636, at *2 (S.D. Tex. July 16, 2008) (Rosenthal,
J.). The grounds for granting a motion for reconsideration under Rule 59(e) include: “(1) an
intervening change in controlling law; (2) the availability of new evidence not previously
available; or (3) the need to correct a clear error of law or prevent manifest injustice.” In re
Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002).
Essentially, Trek argues that it was improper for Judge Clark to transfer this case because
the transfer motion was not really “unopposed” as the motion suggested.
Based on the
abovementioned standard, the Court DENIES Trek’s motion for reconsideration.
The Court agrees that, at least based on this Court’s understanding of an “unopposed”
motion, it was improper for Plaintiffs to label the motion as “unopposed.” In this Court’s view,
when a moving party labels a motion “unopposed,” it means that the moving party has conferred
with the non-moving party and learned that the non-moving party (or parties) are unopposed to the
relief requested. But that is not what happened in this case. Trek was neither a party to the
lawsuit nor had they been served when Plaintiffs filed their “unopposed” motion. Trek states that
it would have opposed the motion if it had known about it, but Trek obviously did not know about
the motion. Thus, it was improper for the motion to be labeled “unopposed.” By “improper,”
however, the Court is not implying that the Plaintiffs or its counsel performed any act of bad faith.
Rather, it would not be unreasonable to consider the motion “unopposed,” as Trek could not have
officially opposed the motion because they were not a party to the case at the time. But that is not
the view of this Court, and, more importantly, that is not how Judge Clark interpreted the
“unopposed” motion. Instead, Judge Clark’s Order stated that because “the motion indicates the
request to transfer is unopposed, the court can only conclude that Trek agrees both that venue
would be proper in the Marshall Division in the first instance, and that analysis of the public and
private interest factors favors transfer to that Division.” (Dkt. No. 4, at 3.)
As a result, Trek has a good argument that this Court should reconsider the transfer order
under either the second or third grounds for reconsideration from In re Benjamin Moore & Co.,
which are discussed above. To illustrate, under the second ground, the Court has available
evidence that was not previously available because the Court now knows that Trek was actually
not unopposed to the transfer motion. Under the third ground, it is arguable that the Court should
prevent the alleged “manifest injustice” of this case being transferred based on a motion labeled
“unopposed” that was not truly unopposed.
Nevertheless, the Court will not reconsider and vacate Judge Clark’s Order because Judge
Clark had other sufficient grounds to transfer this case. Namely, Judge Clark observed that any
prejudice to Trek would be minimal because even if the Court denied the transfer, Plaintiffs could
have merely dismissed the case without prejudice and re-filed in the Marshall Division (since Trek
had neither been served nor answered). Based on that ground, Judge Clark may have decided that
it was in the “interest of justice”2 to transfer the case to the Marshall Division. Such a conclusion
is rational, given that Plaintiffs mistakenly and accidently filed the case in the Lufkin Division. It
would be unjust and irrational to require Plaintiffs to voluntarily dismiss their case in the Lufkin
Division and re-file it in the Marshall Division when the Court could easily use its broad discretion
to transfer the case under 28 U.S.C. § 1404(a). Therefore, Trek’s motion to reconsider is
Trek’s Motion to Transfer Under 28 U.S.C. § 1404(a)
Because the Court DENIES Trek’s motion to reconsider the transfer to the Marshall
Division, in order for Trek to prevail in its attempt to have this case in the Lufkin Division, Trek
must meet its burden to show the Court this case would be “clearly more convenient” in the Lufkin
Division than in the Marshall Division. Trek has not met that burden, therefore, the Court
DENIES Trek’s motion to transfer.
28 U.S.C. § 1404(a).
“For the convenience of parties, 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 Fifth Circuit has enunciated the standard to be used in deciding motions to
transfer venue. See In re Volkswagen of Am., Inc. (“Volkswagen II”), 545 F.3d 304 (5th Cir.
2008) (en banc). The moving party must show “good cause,” and this burden is satisfied “when
the movant demonstrates that the transferee venue is clearly more convenient.” Id. at 314.
The initial threshold question is whether the suit could have been brought in the proposed
transferee district. In re Volkswagen AG (“Volkswagen I”), 371 F.3d 201, 203 (5th Cir. 2004). If
the transferee district is a proper venue, then the Court must weigh the relative conveniences of the
current district against the transferee district. In making the convenience determination, the Fifth
Circuit considers several private and public interest factors, none of which are given dispositive
weight. Id. “The private interest factors are: ‘(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 (quoting Volkswagen I, 371 F.3d at
203). “The public interest factors are: ‘(1) the administrative difficulties flowing from court
congestion; (2) the local interest in having localized [disputes] decided at home; (3) the familiarity
of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems
of conflict of laws [in] the application of foreign law.’” Id.
Analysis of Proper Venue
The threshold “determination to be made is whether the judicial district to which transfer is
sought would have been a district in which the claim could have been filed” in the first place.
Volkswagon I, 371 F.3d at 203. The parties do not dispute that this case could have been filed in
the Lufkin Division, as venue would be proper there as it is in the Marshall Division. Therefore,
the threshold determination is met in this case.
Analysis of Public and Private Interest Factors
After considering the public and private interest factors, the Court DENIES Trek’s motion
to transfer venue to the Lufkin Division under 28 U.S.C. § 1404(a).
The factual allegations underlying Trek’s motion include the following. First, Plaintiffs
reside in the Lufkin Division. Second, key nonparty witnesses (which are not named) as well as
other fact witnesses all reside in the Lufkin Division. Third, the accident happened in the Lufkin
Division (in Nacogdoches, Texas) and the reports are more easily accessed there. Finally, there is
nothing in the Marshall Division. Based on these factual allegations, Trek asks this Court to
transfer venue, and the Court declines.
At the outset, the Court observes that Trek has the burden on its motion to transfer venue to
the Lufkin Division,3 and Trek has provided no affidavits or other evidence to support its factual
The Court observes that the parties dispute which party should carry the burden in the motion to
transfer venue. It is the movant that carries the burden in a motion to transfer venue.
Volkswagen II, 545 F.3d at 314. Nevertheless, Trek argues it should not carry the burden because
(1) venue was wrongly transferred to the Marshall Division by Judge Clark based on a misleading
“unopposed” motion to transfer; and (2) the burden from Volkswagen is partially based on the
plaintiff’s choice of venue, and because the Plaintiffs originally chose the Lufkin Division, that
changes the burden. With respect to Trek’s first argument, the Court has already denied Trek’s
motion to reconsider Judge Clark’s Order. Thus, venue is currently proper in the Marshall
Division, so because Trek is seeking to change venue to the Lufkin Division, Trek bears the burden
as the movant. As to the second argument, the Court plainly disagrees with Trek’s statement that
Plaintiffs’ choice of venue was the Lufkin Division because Plaintiffs only filed there by mistake.
assertions. Instead of pointing out the likely witnesses and their locations, Trek asks the Court to
merely assume the location of witnesses, and that is improper for the party bearing the burden.
Nevertheless, even assuming arguendo that Trek’s account of the facts is correct, Trek leaves out
two very important facts.
First, the accident occurred in Nacogdoches, Texas, which is within the Lufkin Division.
And because Trek provides no detail, the Court can only assume that the witnesses Trek refers to
are also located in Nacogdoches. The city of Nacogdoches is approximately twenty miles from
the Lufkin Division courthouse, but it is only approximately seventy-five miles from the Marshall
Division courthouse. Therefore, to the extent the location of witnesses or sources of proof in
Nacogdoches affect the factors of “the relative ease of access to sources of proof,” “the cost of
attendance for willing witnesses,” and “the local interest in having localized disputes decided at
home,” this effect is minimal given the relative distance of Nacogdoches to Lufkin and Marshall.
Indeed, for at least the factor of convenience to the witnesses, the Fifth Circuit has promoted the
“100-mile rule” when considering this factor, and Nacogdoches is within 100 miles from Lufkin
and Marshall. Even Lufkin is within 100 miles from Marshall. Furthermore, to the extent any
nonparty witnesses are located in either Nacogdoches or Lufkin, those witnesses would also be
subject to the Court’s subpoena power, so the factor of “availability of compulsory process to
secure the attendance of witnesses” is neutral.
Second, Trek ignores the fact that there is no sitting district judge in the Lufkin Division.
Instead, either Judge Clark or Judge Crone travel from Beaumont, Texas to the Lufkin courthouse
Instead, it is clear to this Court that Plaintiffs’ choice of venue was the Marshall
Division—otherwise Plaintiffs would not have sought to transfer venue to the Marshall Division
merely days after filing in the Lufkin Division. Therefore, Trek carries the burden in this motion
for any trials or hearings, and that is a distance of over 100 miles. In contrast, the Marshall
Division has a sitting district judge and magistrate judge. Thus, the factor the Fifth Circuit
entitles “all other practical problems that make trial of a case easy, expeditious and inexpensive” at
least slightly weighs in favor of keeping this case in the Marshall Division because it creates a
lesser strain on the judicial resources in the Eastern District of Texas by limiting the travel
requirements for the judges.
In conclusion, this Court recognizes the significant burden on a movant in a motion to
transfer venue. Indeed, as this Court stated in Texas Data Co., L.L.C. v. Target Brands, Inc.,
“[t]he Fifth Circuit in Volkswagen II recognized this ‘significant burden’ and issued a writ of
mandamus to transfer only after it found that four of the eight Gilbert factors weighed in favor of
transfer and no factors weighed against transfer.” Civ. No. 2:10-cv-269-TJW, --- F. Supp. 2d ----,
2011 WL 98283, at *14 (E.D. Tex. Jan. 12, 2011) (J. Ward). As discussed above, at most, the
factors of “the relative ease of access to sources of proof,” “the cost of attendance for willing
witnesses,” and “the local interest in having localized disputes decided at home” minimally weigh
in favor of transfer. The factor of “all other practical problems that make trial of a case easy,
expeditious and inexpensive” slightly weighs against transfer. All other factors are neutral.
Therefore, Trek has not met its burden of showing the Lufkin Division is “clearly more
convenient” than the Marshall Division. See Volkswagen II, 545 F.3d at 315.
Trek’s Motion to Reconsider Judge Clark’s Order Transferring Venue is DENIED. (Dkt.
No. 8.) Trek’s Motion to Transfer Venue from the Marshall Division to the Lufkin Division is
also DENIED. (Dkt. No. 8.)
It is so ORDERED.
SIGNED this 28th day of July, 2011.
T. JOHN WARD
UNITED STATES DISTRICT JUDGE