Rosemond v. United Airlines, Inc. Do Not Docket. Case electronically transferred to Eastern District of Virginia, Alexandria Division, No. 4:2013cv02190 - Document 21 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER Granting 15 Amended MOTION to Transfer Case to Eastern District of Virginia, Alexandria Division. (Signed by Judge Sim Lake) Parties notified. (sclement, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LYNDA ROSEMOND, § § § § § § § § § Plaintiff, v. UNITED AIRLINES, INC., Defendant. CIVIL ACTION NO. H-13-2190 MEMORANDUM OPINION AND ORDER Plaintiff Lynda Rosemond brought this Title VII action against defendant United Airlines, Inc., on July 26, 2013. Pending before the court is Defendant's First Amended Opposed Motion to Transfer Venue ("Motion to Transfer") reasons explained below, granted and Division of § this the case (Docket Entry No. 15). For the Defendant's Motion to Transfer will be will be Eastern District transferred of to Virginia the under Alexandria 28 U. S. C. 1404 (a) . I. Plaintiff is a flight Background attendant who was based out of Defendant's Washington-Dulles International Airport hub in Dulles, Virginia .1 In her complaint, filed on July 26, 2013, Plaintiff alleges that she was sexually harassed by a pilot who also worked 1Affidavit of Lee Ann Bode ("Bode Affidavit"), Exhibit A to Motion to Transfer, Docket Entry No. 15-1, p. 1 ~ 2; Motion to Transfer, Docket Entry No. 15, p. 6. for Plaintiff Defendant. 2 further alleges that after she complained of the harassment "her supervisor and others at United Airlines retaliated against her by a coordinated campaign to declare her unfit for duty."3 Defendant filed its answer on September 18, 2013. 4 Defendant 2014. 5 On parties and filed the pending Motion to Transfer on January 22, March 7, 2014, Plaintiff filed a response. 6 II. Under witnesses, 1404 (a), § in the Applicable Law "[f] or interest the of convenience justice, a of district court may transfer any civil action to any other district or division where it might have considering a § been 28 brought." U.S.C. § 1404 (a) . 1404 motion to transfer, a district court considers a number of private- and public-interest factors, can be said to be of dispositive weight.'" Rentals Inc., Jan. 3, 2014) "When No. H-13-1112, 2014 2Plaintiff's Original Complaint, ~~ 7-9. 3Id. at 2-3 ~ Wells v. Abe's Boat WL 29590, (quoting Action Indus., 'none of which at *1 (S.D. Inc. v. U.S. Fid. & Docket Entry No.1, Tex. Guar. p. 2 10. 4Defendant's Original Answer, Docket Entry No.4. 5Motion to Transfer, Docket Entry No. 15. 6Plaintiff's Memorandum in Response to Defendant's Motion to Transfer Venue ("Response"), Docket Entry No. 17. -2- Corp., 358 F.3d 337, 340 factors are: The private-interest (5th Cir. 2004)). "(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." 203 (5th Cir. 2004) In re Volkswagen AG, 371 F.3d 201, [hereinafter In re Volkswagen I] Aircraft Co. v. Reyno, 102 S. Ct. 252, 258 n.6 (citing Piper (1981)); see also Atlantic Marine Const. Co.! Inc. v. U.S. Dist. Court for W. Dist. of Tex., 134 S. factors are: court Ct. "(1) congestion; 568, 581 n.6 (2) the local (3) the the that The public-interest the administrative difficulties flowing from interests decided at horne; law (2013). will govern interest in having localized the familiarity of the forum with case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law." "weigh the In re Volkswagen I, 371 F.3d at 203. relevant factors and decide whether, The court must on balance, a transfer would serve 'the convenience of parties and witnesses' and otherwise promote 'the interest of justice.'" S. Ct. at 581 (quoting 28 U.S.C. § Atlantic Marine, 134 1404(a)). "The [c]ourt must also give some weight to the plaintiff['s] choice of forum." Norwood v. party Atlantic Marine, 134 S. Ct. at 581 n.6 Kirkpatrick, seeking the 75 S. transfer Ct. "'must -3- 544,546 show (1955)). good (citing Thus, cause.'" In the re and material to [Plaintiff's] claims are . . . located, maintained and administered addition, in, near or around Plaintiff was "based out of Virginia. ffs Dulles, [Defendant's] In Washington- Dulles International Airport hub in Dulles, Virginiaff and although she is not currently [Defendant's] working, "[s]he Dulles, Virginia hub, is still based out of and her leave of absence is managed by her supervisor in the Virginia hub. ff 9 Because the relevant employment records are maintained and administered in the Eastern District of Virginia, and because that is the district where Plaintiff would have worked but for the alleged unlawful employment practice, this suit could have originally been filed in the Eastern District of Virginia. 10 SId. a t 9Id. ~ 1 42 U. S . C. § 200 Oe-5 (f) (3) . ~ 1. 1 3 2. 10Because the special venue statute "displaces the general venue provision set out in 28 U.S.C. § 1391,ff Allen v. U.S. Department of Homeland Security, 514 F. App'x 421, 422 (5th Cir. 2013), venue is only proper in the Southern District of Texas if (1) the alleged unlawful employment practice was committed in Texas, (2) the relevant employment records are maintained and administered in the Southern District, (3) Plaintiff would have worked in the Southern District but for the alleged unlawful employment practice, or, (4) Defendant has its principal office in the Southern District, so long as Defendant cannot be found in a district implicated by (1) through (3). See 42 U.S.C. § 2000e-5(f) (3); Allen, 514 F. App'x at 422; Tucker v. U.S. Dep't of Army, 42 F.3d 641, 1994 WL 708661 (5th Cir. 1994) (unpublished table decision); March v. ABM Sec. Servs., Inc., No. H-09-2422, 2010 WL 104480 (S.D. Tex. Jan. 7, 2010); Kapche v. Gonzales, No. V-07-31, 2007 WL 3270393, at *3 (S.D. Tex. Nov. 2, 2007). As Defendant points out in its Motion to Transfer, Plaintiff does not allege that any unlawful employment practice was committed in Texas. Motion to Transfer, Docket Entry No. 15, p. 7. (cont inued ... ) -'5- A. The Private-Interest Factors 1. The Relative Ease of Access to Sources of Proof Bode's affidavit states that the records relevant to Plaintiff's claims are "located, maintained and administered in, near or around Dulles, Virginia. files Defendant argues maker] Texas] 1111 Plaintiff argues that "the [venue in the Southern District of inconvenient are few" and that "[m]ost files today can be faxed or sent by other electronic means." l2 However, whether the files "can be faxed or sent by other electronic means" will not preclude a conclusion that the location of the files weighs in favor of transfer. Cf. In re Toa Technologies, Inc., No. 13-153, 2013 WL 5486763, at *2 court assigned majority of (Fed. Cir. Oct. 3, 2013) substantial the weight Defendant's to the fact ("[TJhe district that documentation is [ 'the vast ] stored electronically' and that this digital information is 'effectively 10 ( ... continued) Accordingly, on the facts presented in the record, venue is not proper in the Southern District of Texas. However, Defendant waived any objection to venue by failing to raise it in its answer. See 28 U.S.C. § 1406(a)-(b); Fed. R. Civ. P. 12(h); Allen, 514 F. App'x at 422. "Because a party may seek a § 1404(a) transfer of venue after filing its first responsive pleading," however, the court may consider whether transfer is warranted under § 1404(a). Allen, 514 F. App'x at 422; see also Williamson-Dickie Mfg. Co. v. M/V HEINRICH J, 762 F. Supp. 2d 1023, 1027-30 (S.D. Tex. 2011); Sabre Technolooies, L.P. v. TSM SkYline Exhibits, Inc., No. H-08-1815, 2008 WL 4330897, at *7 (S.D. Tex. Sept. 18, 2008). llBode Affidavi t, Exhibit A to Motion to Transfer, Docket Entry No. 15-1, p. 1 ~ 3. 12Response, Docket Entry No. 17, p. 2 -6- ~~ b, f. stored everywhere, However, including the Eastern District of Texas [.] , this does not negate the significance of having trial closer to where [the] physical documents and employee notebooks are located. The critical inquiry 'is relative ease of access, absolute ease of access.'" 285, 288 (5th Cir. not (quoting In re Radmax, Ltd., 720 F.3d Because 2013))). the relevant files are located, maintained, and administered in the Eastern District of Virginia, this factor weighs in favor of transfer. 2. The Availability of Compulsory Process to Secure the Attendance of Witnesses "Under Federal Rule of Civil Procedure 45 (as recently amended), this Court may enforce a subpoena issued to any nonparty witness in the State of Texas to appear at trial, party does not incur substantial expense." provided the Ingeniador, LLC v. Adobe Sys. Inc., No. 2:12-CV-00805-JRG, 2014 WL 105106, at *2 (E.D. Tex. Jan. 10, 2014) (citing Fed. R. Civ. P. 45 (c) (1) (B)). "A venue that has 'absolute subpoena power for both deposition and trial' is favored over one that does not." Thomas Swan & Co. Ltd. v. Finisar Corp., No. 2:13-CV-178-JRG, 2014 WL 47343, at *3 (E.D. Tex. Jan. 6, 2014) (quoting In re Volkswagen II, 545 F.3d at 316). Bode's affidavit states that "[m]ost of the witnesses who are knowledgeable, pertinent and material to the allegations made by [Plaintiff] in this lawsuit reside -7- in, near or around Dulles, Virginia. lIl3 that it However, Defendant has not identified any individuals intends to call as See witnesses. u.S. Ethernet Innovations, LLC v. Samsung Electronics Co., Ltd., No. 6:12-CV-398 MHS-JDL, 2013 WL 1363613, [c]ourt gives witnesses and witnesses are Furthermore, likely be the weight affords likely less presented subpoena to Tex. Apr. those weight located in either specifically to . vague in 2, a 2013) ("The identified assertions that forum. II) ¢ particular court without reliance on the See Wells, 2014 WL 29590, at *2 ("[T]he testimony individuals defendant] (E.D. the testimony of Defendant's current employees can subpoena power. of more at *3 who are current employees of [the can be presented in Texas without the need to rely on power. II) (citing 346 F. Supp. 2d 922, 933 Boutte v. Cenac Towing, Inc. , (S.D. Tex. 2004)) Plaintiff's pretrial disclosures identify a number of medical professionals in the Houston area that Plaintiff intends to call as witnesses. 14 The Eastern District of Virginia would lack subpoena power over these witnesses. See Fed. R. Civ. P. 45. In light of Defendant's failure to identify any non-party witnesses for whom compulsory process would be necessary, this factor weighs against transfer. l3Bode Affidavit, Exhibit A to Motion to Transfer, Docket Entry No. 15-1, p. 1 ~ 3. 14Plaintiff's Pretrial Disclosures, Docket Entry No. 16, p. 1 -8- 3. The Cost of Attendance for Willing Witnesses As noted above, Defendant alleges that "most of the witnesses who are knowledgeable, pertinent and material to the allegations made by [Plaintiff] Dulles, Virginia. ,,15 courthouse is in this lawsuit reside in, near, or around The court takes judicial notice that this approximately 1,215 miles from Division of the Eastern District of Virginia. the Alexandria "'When the distance between an existing venue for trial of a matter and a proposed venue under § 1404 (a) is more than 100 miles, the factor of inconvenience to witnesses increases in direct relationship to the additional distance to be traveled.'" F.3d at 317 In re Volkswagen II, (quoting In re Volkswagen I, "[I]t is an 'obvious conclusion' witnesses to testify at home." 545 371 F.3d at 204-05). that it is more convenient for Id. (quoting In re Volkswagen I, 371 F.3d at 205) . "In considering the convenience of witnesses, however, the relative convenience to key witnesses and key non-party witnesses is accorded greater weight in the venue transfer analysis" and "the convenience of one key witness may outweigh the convenience of numerous less important witnesses." Mid-Continent Cas. Petroleum Solutions, Inc., 629 F. Supp. 2d 759, 762-63 2009). Co. v. (S.D. Tex. Because neither party has identified its key witnesses or 15Bode Affidavit, Exhibit A to Motion to Transfer, Docket Entry No. 15-1, p. 1 ~ 3. -9- explained the relevance of their testimony, determine whether any key witnesses will See transfer. 805 F. Supp. Cont' 1 1392, Airlines, 1396 Inc. (S.D. Tex. be v. 1992) the court cannot inconvenienced by Am. Airlines, Inc., ('\\ [T]he party seeking transfer must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover.'" (quoting 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3851, at 425 (1986))). The court therefore concludes that this factor weighs against transfer. See id.i cf. Sivertson v. Clinton, No. 3:11-CV-0836-D, 2011 WL 4100958, at *6 (N.D. Tex. Sept. 14, 2011) (finding this factor to be neutral when it was unclear whether the witnesses identified by the plaintiff would provide any relevant testimony). 4. All Other Practical Problems That Make Trial of a Case Easy, Expeditious and Inexpensive Plaintiff argues that she "cannot afford to pay her attorney to travel to another District to try this case.,,16 factor of 'location of counsel' However, "[t]he is irrelevant and improper for consideration in determining the question of transfer of venue." In re Horseshoe Accordingly, the Entm't, fact 337 that F.3d 429, Plaintiff's 434 (5th counsel Cir. is Houston does not weigh either for or against transfer. 16Response, Docket Entry No. 17, p. 2 -10- ~ b. 2003). located in On the other hand, the events giving rise to Plaintiff's claim of retaliation occurred Plaintiff alleges Airlines retaliated declare her that unfit in "her against for the Eastern District supervisor her by duty.Hl7 a and of others coordinated Plaintiff was Virginia. at United campaign based out to of Defendant's Washington-Dulles International Airport hub in Dulles, Virginia, when the alleged retaliation occurred "and her [current] leave of absence is managed by her supervisor in the Virginia hub. HIS The court takes judicial notice that Dulles is within the Eastern District of Virginia. Given the nature of Plaintiff's claims, it would likely be more expeditious to resolve this case in the district where the events occurred and the participants are located. Holdings, L.L.C. 5214097, at *6 v. Bocook Eng'g, Inc., (S.D. Tex. Dec. 22, 2009) No. Cf. WHM Mineral H-09-2817, 2009 WL ("The court first notes that in general it is probably more expeditious for a court in Kentucky to resolve a dispute about what someone in Kentucky said about a Kentucky coal mine than it would be for a court in Texas to resolve the same dispute. H) The court therefore concludes that this factor weighs in favor of transfer. 17Plaintiff's Original Complaint, Docket Entry No. I, pp. 3-4 ~ 10. IS Bode Affidavit, Exhibit A to Motion to Transfer, Docket Entry No. 15-1, p. 1 ~ 2. -11- ---_._._._-------------------- B. The Public-Interest Factors 1. The Administrative Congestion Difficulties " [W] hen considering this factor, Flowing from Court 'the real issue is not whether [transfer] will reduce a court's congestion but whether a trial may be speedier in another court because of its less crowded docket.'" Siragusa v. Arnold, No. 3:12-CV-04497-M, (N.D. Tex. Sept. 16, 2013) 2013 WL 5462286, at *7 (quoting USPG Portfolio Two, LLC v. John Hancock Real Estate Fin., Inc., No. 3:10-CV-2466-D, 2011 WL 1103372, at *5 (N.D. Tex. Mar. 25, 2011)). Accordingly, courts often consider the median time interval from case filing to disposition in analyzing this factor. See id.; ExpressJet Airlines, Inc. v. RBC Capital Markets Corp., No. H-09-992, 2009 WL 2244468, at *12 Tex. July 27, 2009). (S.D. The median time between filing and disposition in the Southern District of Texas is 7.2 months, while it is 5.1 months in the Eastern District of Virginia. 19 "This difference in disposition time is negligible and does not weigh in favor of or against transfer." ExpressJet, 2009 WL 2244468, at *12 (concluding that a difference of 2.2 months between districts did not weigh either in favor of or against transfer). Accordingly, this factor is neutral. 19See Fed. Court Mgmt. Statistics, United States District Courts-National Judicial Caseload Profile (2013), available at http://www.uscourts.gov/uscourts/Statistics/FederalCourtManagemen tStatistics/2013/district-fcms-profiles-septernber-2013.pdf. -12- ~ ------.----.-------- ... ~.. 2. The Local Interest in Having Localized Interests Decided at Home "The location of the alleged wrong is of 'primary importance' in this [c] ourt' s venue determination." 933 (S.D. 246 F. Tex. Supp. 2d 668, Vilsack, No. V-09-40, 2009) (quoting 2004) 675 Boutte, 346 F. Supp. 2d at Speed (S.D. Tex. v. Omega 2003)) Protein, Inc., i see also Molina v. 2009 WL 5214098, at *4 (S.D. Tex. Dec. 23, ("The place of the alleged wrong is considered one of the most important factors in determining a motion to transfer venue." (citing Devon Energy Prod. Co., L.P. No. H-06-2992, 2007 WL 1341451, at *8 v. GlobalSantaFe S. Am., (S.D. Tex. May 4, 2007))). Here, the alleged retaliation occurred in the Eastern District of Virginia. As noted by Defendant, experienced harassment although Plaintiff alleges that she "during flights, ,,20 she "avoids any allegation that the alleged discrimination or retaliation occurred in the Southern District of Texas or that any United employee involved in decisions relevant to this lawsuit reside[s] Southern District of Texas.,,21 in the Plaintiff was assigned to work in Dulles, her supervisor is in Dulles, the events giving rise to her claim of retaliation occurred in Dulles, and Plaintiff would still be working practice. in Dulles but for the alleged unlawful employment The Eastern District of Virginia thus has a strong local 2°Plaintiff's Original Complaint, Docket Entry No.1, p. 2 ~ 9. 21Motion to Transfer, Docket Entry No. 15, p. 7. -13- ----_ _ .............. .. ........ _---._----_..... _----- interest in deciding this case. heavily in favor of transfer. Accordingly, this factor weighs Cf. Hutchinson v. Texas Historical Comm'n, No. 1:11-CV-65, 2011 WL 6181601, at *2 (E.D. Tex. Sept. 12, 2011) she (" [Plaintiff's sole connection to the current forum is that moved to Beaumont The employer] sometime Western after she of Texas District was fired has a by [her substantial interest in this controversy while the Eastern District of Texas has little to no interest in it."); Murungi v. Touro Infirmary, No. 6:11-CV-0411, 2011 WL 3206859, at *7 (W.D. La. June 29, 2011) ("The undersigned finds that trial of this action will be more convenient in the Eastern District since the only connection between the Western District and this lawsuit is the fact that the plaintiff now resides here rather than in the Eastern District.") . 3. The Familiarity of Govern the Case the Forum with the Law that Will Neither this court nor the Eastern District of Virginia is more or less familiar with the law that will govern this case. Therefore, this factor is neutral. 4. The Avoidance of Unnecessary Problems of Conflict of Laws or in the Application of Foreign Law Because there are no conflict of laws issues that would make this case District better suited of Virginia, against transfer. for this either this factor cannot court weigh or the either Accordingly, this factor is neutral. -14- Eastern for or C. Conclusion The court finds that three factors weigh in favor of transfer, one of which strongly favors transfer, two factors weigh against "The district court has transfer, and three factors are neutral. broad discretion in deciding whether to order a transfer. Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1998) Caldwell v. Cir.1987)). that Palmetto State Bank, 811 Weighing the relevant factors, "on balance, a transfer would parties and witnesses' justice. 'II § Sav. serve F.2d 916, 1I (quoting 919 (5th the court concludes \ the and otherwise promote convenience \ the interest of of Atlantic Marine, 134 S. Ct. at 581 (quoting 28 U.S.C. 1404(a)). IV. Conclusion and Order For the reasons explained above, the court concludes that this case should be transferred to the Eastern District of Virginia. Defendant's First Amended Opposed Motion to Transfer Venue (Docket Entry No. 15) is therefore GRANTED and this case is TRANSFERRED to the Alexandria Division pursuant to 28 U.S.C. § of the Eastern District of Virginia 1404(a). SIGNED at Houston, Texas, on this 2nd day 2014. SIM LAKE UNITED STATES DISTRICT JUDGE -15-
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