Opinion
NO. 1:02-CV-136
July 13, 2002
Jay M. Wright, of Conroe, TX, For Plaintiffs
Christopher Jake Oddo of McGinnis, Lockridge Kilgore, Austin, TX, For Defendants
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DEFENDANT'S MOTION TO TRANSFER VENUE
Hon. Richard A. Schell, United States district judge to whom this action is assigned for trial, referred pretrial matters to the undersigned United States magistrate judge pursuant to Beaumont General Order 91-16.
Referral of pretrial case management to United States magistrate judges is authorized by 28 U.S.C. § 636(b)(1)(A) and E.D. Tex. R. app. B (Rule 1(D)(1)). Generally, such references contemplate that magistrate judges shall rule on all pretrial matters that Congress authorizes magistrate judges to hear and determine. For all other pretrial motions, the reference contemplates that magistrate judges will conduct hearings, if necessary, and submit written reports containing proposed findings of fact, conclusions of law, and recommendations for disposition. Unless all parties consent to trial before a magistrate judge, trial and entry of final judgment will be handled by the district judge to whom the case is assigned.
Defendants move to transfer venue. Judge Schell's general order directs the undersigned to submit a written report addressing the motion and recommending its disposition. This report ultimately concludes that the motion should be granted because the balance of convenience and public interest factors preponderate in favor of transfer.
I. Nature of Suit and Parties
This is an action by heirs to recover damages for the alleged wrongful death of Rolondo Rios, an inmate at the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Plaintiffs, Joshua Rios ("Rios") and Mary Canales("Canales"), are the son and mother of Rolondo Rios, deceased. They reside in Alice, Jim Wells County, Texas.
Defendants are 1) Doyle Wayne Scott, 2) Gary L. Johnson, 3) Jane Catherine Cockrell, 4) Leslie Woods, 5) Roy Anthony Garcia, and 6) Unknown Female Guard. Each defendant is alleged to be a present or former officer, agent or employee of TDCJ-ID. Plaintiffs assert the first five listed defendants may be served in Huntsville, Walker County, Texas.
II. Factual Background
According to the complaint, Rolondo Rios was an inmate at the Texas Department of Criminal Justice, Institutional Division's Coffield Unit, Tennessee Colony, Anderson County, Texas (Tyler division, eastern district of Texas). Rolondo Rios was attacked and killed by a fellow inmate on March 16, 2000, while housed in Administrative Segregation at the Tennessee Colony facility. Rolondo Rios, while handcuffed, was being escorted by Unknown Female Guard from the shower area to his cell. Another inmate, Antonio Lara, managed to exit his own cell and attack Rolondo Rios with a weapon known as a "shank." Antonio Lara had filed through a metal brace holding the door of his cell closed so that it had the appearance of being secure, while allowing Antonio Lara to open the door when he wished. The Unknown Female Guard ran away yelling during the attack and offered no protection or assistance to Rolondo Rios. Rolondo Rios was stabbed multiple times and died as a result of the wounds.
Plaintiffs assert Administrative Segregation houses inmates who are security risks, potential victims and protective custody prisoners.
III. Causes of Action
Plaintiffs filed suit on March 12, 2002, laying venue in the Beaumont division of the eastern district of Texas. Plaintiffs allege defendants failed to adequately protect Rolondo Rios. Plaintiffs contend Rolondo Rios was assaulted and killed by another inmate as a result of deliberate indifference, negligence and "a de facto practice, custom and policy" on the part of defendants. Plaintiffs invoke federal question jurisdiction under Title 42, United States Code, Section 1983, in order to assert claims for deprivations of rights guaranteed under the Fourth, Fifth, Eighth and Fourteenth Amendments of the United States Constitution. Plaintiffs also append state law negligence claims pursuant to the Texas Civil Practice and Remedies Code 71.002 et seq., the Texas Tort Claims Act, and common law.
Plaintiffs also invoke the court's declaratory judgment jurisdiction under 28 U.S.C. § 2201. The complaint, however, nowhere seeks declaratory relief, only monetary damages.
IV. Motion for Transfer of Venue and Response
Defendants move for transfer of venue to the Tyler division of the eastern district of Texas pursuant to 28 U.S.C. § 1404(a) for convenience of parties and witnesses, and in the interest of justice. Defendants contend that all events giving rise to plaintiff's claims occurred in Anderson County, Texas, within the Tyler division; that none of the named parties reside in the Beaumont division; that no potential material fact witnesses are located in the Beaumont division, while all are located in the Tyler division; that two of the named defendants, Woods and Garcia, reside in Anderson County, Texas, (Tyler division); that all documentation regarding the alleged events is in and around the Tennessee Colony facility (Tyler division); and that transporting and providing of overnight housing to any potential inmate witnesses from the Tennessee Colony facility to Beaumont will be more costly, inconvenient and give rise to greater security and safety concerns, as compared to day trips to and from Tyler. Defendants assert plaintiffs are merely forum shopping, and venue more properly rests in the Tyler division.
Plaintiffs oppose transfer, and contend that the Beaumont division is a more convenient forum. First, Beaumont is closer to plaintiffs' residences by 192.3 miles, and to plaintiffs' counsel's office by 56.7 miles. Next, plaintiffs respond that Beaumont is closer to their two forensic witnesses. These witnesses are Dr. Charles M. Harvey, M.D., the Chief Medical Examiner for Galveston County, Texas, residing in Texas City, Galveston County, Texas, and Dr. Raul Capitaine, M.D., a psychiatrist, residing in Corpus Christi, Nueces County, Texas. If the action is transferred to the Tyler division, Dr. Harvey's travel would increase by 149.4 miles, and Dr. Capitaine's travel would increase by increase by 192.3 miles. Thus, transferring the case to Tyler would greatly increase travel for plaintiffs, their witnesses and their counsel.
All distances recited in this report are those averred by plaintiffs. According to plaintiffs' response, the distances were calculated electronically through the Expedia Map Service website.
Plaintiffs aver that Beaumont is 326.7 miles from their residence, while Tyler is 519 miles away.
Plaintiffs aver that Beaumont is 125.7 miles from their counsel's office, while Tyler is 182.4 miles away.
Plaintiffs aver that Beaumont is 105.9 miles from Dr. Harvey's office, while Tyler is 255.3 miles away.
Plaintiffs aver that Beaumont is 313.3 miles from Dr. Capitaine's office, while Tyler is 505.6 miles away.
Plaintiffs also argue that the Beaumont division is a more convenient venue for three of the named defendants who reside in Huntsville, Walker County, Texas which is closer to Beaumont than Tyler. Finally, plaintiffs contend that defendants will not have to suffer costs of travel to Beaumont as those costs will be paid by the State of Texas.
Defendants reply asserts that though plaintiffs, their counsel and plaintiffs' two named forensic witnesses may be required to travel further if the case is transferred to Tyler, none of them are material witnesses to the incident in question. Defendants contend that all material witnesses who will testify at trial regarding the events giving rise to the claim work and live in Tennessee Colony, Anderson County, Texas, and the prison unit is located there. Defendants further reply that one of the named defendants, Wayne Scott, is no longer employed by the State of Texas, and will travel at his own expense. Finally, for those who travel at the expense of the State of Texas, the extra cost associated with the travel to Beaumont rather than Tyler, given that the events giving rise to the claim and material witnesses are located in the Tyler division, would not be a wise expenditure of taxpayer money.
V. Principles of Analysis
Title 28, United States Code, Section 1404(a) provides that venue of a civil action may be transferred, "[f]or the convenience of parties and witnesses, in the interest of justice, . . . to any district or division where it might have been brought." In deciding whether to transfer, a court exercises its discretion in light of the circumstances of the case. Radio Santa Fe v. Sena, 687 F. Supp. 284, 287 (E.D.Tex. 1988). This discretion is tempered with a "strong presumption in favor of the plaintiff's choice of forum. . . ." Schexnider v. McDermott Int'l, Inc. 817 F.2d 1159, 1163 (5th Cir. 1987) cert. denied 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). However, a plaintiff's choice of forum "may be overcome . . . when the private and public interest factors clearly point towards trial in the alternative forum." Id.; see also Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334, 339 (5th Cir. 1999) (noting that though plaintiff's choice of forum was an important consideration, other factors outweighed it and transfer of venue was appropriate); Lindloff v. Schenectady Int'l., 950 F. Supp. 183, 185 (E.D. Tex 1996) (holding plaintiff's choice of forum entitled to reduced significance when only connection to chosen venue is residence of plaintiff's counsel). But see Mohamed v. Mazda Motor Corp., 90 F. Supp.2d 757, 771 (E.D. Tex 2000) (holding that irrespective of the circumstances, plaintiff's choice of forum remains highly esteemed).
When considering a proposed transfer for convenience and in interest of justice, the court balances two categories of interests: (1) convenience of the litigants, and (2) the public interest in the fair and efficient administration of justice. Int'l Software Sys., Inc. v. Amplicon, Inc., 77 F.3d 112, 115 (5th Cir. 1996); Walter Fuller Aircraft Sales v. The Republic of the Philippines, 965 F.2d 1375, 1389 (5th Cir. 1992). The convenience factors include: (1) plaintiff's choice of forum, (2) convenience of parties and witnesses, (3) place of the alleged wrong, (4) location of counsel, (5) cost of obtaining attendance of witnesses, (6) accessibility and location of sources of proof, and (7) possibility of delay and prejudice if transfer is granted. Robertson v. Kiamichi Railroad Co., L.L.C., 42 F. Supp.2d 651, 655 (E.D.Tex. 1999) (citingLindloff v. Schenectady Int'l., 950 F. Supp. at 185-86); see also Fletcher v. Southern Pac. Transp. Co., 648 F. Supp. 1400, 1401 (E.D.Tex. 1986). The public interest factors include: (1) administrative difficulties caused by the court congestion, (2) local interest in adjudicating local disputes, (3) unfairness of burdening citizens in an unrelated forum with jury duty, and (4) avoidance of unnecessary problems in conflict of laws. Id.
A typical motion to transfer for convenience involves a request to transfer venue to another judicial district. The current motion requests transfer to another division within the same district. However, balancing of the same convenience and public interest factors is required in this circumstance. See Mills v. Beech Aircraft Corp, Inc., 886 F.2d 758, 761 (5th Cir. 1989) (balancing interests in a civil action transferred from one division to another within the same district); see also Bishop v. C P Trucking Co., Inc., 840 F. Supp. 118, 119-20 (N.D.Ala. 1993).
VII. Analysis
Since no parties, witnesses, counsel or relevant records are located in the Beaumont division, and since the Tyler division is the place of the alleged wrong and the residence of some parties, the outcome of a traditional balancing of convenience and public interest factors is almost self evident. However, the exercise is constructive for other reasons. Since 1989, statutory divisional venue no longer exists. See 28 U.S.C. § 1393 (repealed 1988). While 28 U.S.C. § 1406(a) continues to refer to the filing of a case laying venue in the "wrong division", such language is vestigial and meaningless. Crumrine v. NEG Micon USA, Inc., 104 F. Supp.2d 123, 1126 (N.D.Iowa 2000). It is now clear that trial of an action properly laying venue within a district may occur within any division within that district and irrespective of the parties' consent. Fed.R.Civ.P. 77(b); see also Bishop, 840 F. Supp. at 119; 32A Am. Jur.2d Federal Courts § 1419 (2002). This circumstance logically suggests that trial courts should entertain Section 1404(a) motions for intra-district change of venue with caution, and should not grant the requested relief unless the balancing of convenience and public interest factors results in a firm conclusion that the proposed new venue is decidedly more convenient and in the interest of justice.
Title 28, United States Code, Section 1393 provided:
Except as otherwise provided, any civil action, not of a local nature, against a single defendant in a district containing more than one division must be brought in the division where he resides.
Any such action, against defendants residing in different divisions of the same district or different districts in the same State, may be brought in any of such divisions.
A. Convenience Factors
Only two of the seven convenience factors favor the Beaumont division, those being the plaintiffs' choice of forum (factor 1) and location of plaintiffs' counsel (factor 4). These factors do not weigh particularly heavy, however, because neither plaintiffs, nor their counsel, reside in the Beaumont division.
All remaining factors favor the Tyler division. Two defendants and all material fact witnesses to the incident, are located in Tennessee Colony, which is close enough to the Tyler courthouse for all witnesses to commute to and from court without incurring lodging expense. While Tyler is a more distant forum for plaintiffs and their forensic witnesses, both Beaumont and Tyler are of sufficient distance from plaintiffs' residence that overnight lodging will be required in order for them to attend a trial. The same is true for Dr. Capitaine. The requirement for overnight lodging in either venue for Dr. Harvey is not a certainty, but remains a distinct possibility, depending on when his testimony might be required. Consequently the second factor (convenience of parties and witnesses) favors the Tyler division.
The place of the alleged wrong (factor 3) is Tennessee Colony, again favoring the Tyler division. Cost of obtaining witnesses (factor 5) favors the Tyler division in that transportation, housing and security for inmate witnesses will be less expensive and complicated if the trial is in Tyler. The accessibility and location of sources of proof (factor 6) favors the Tyler division, as all records of the attack are in and around the Tennessee Colony facility, and witnesses to the alleged de facto unit policy are either the defendants themselves, or are located at the Tennessee Colony facility. Finally, the possibility of delay and prejudice if transfer is granted (factor 7) poses no danger as this case was filed on March 12, 2002. No motion is currently pending on the docket. In sum, plaintiffs' choice of forum is outweighed by five of the seven convenience factors that favor the Tyler Division.
Defendants motion for a Rule 7(a) reply with brief in support of plaintiffs' claim, filed on May 13, 2002, (Docket No. 7) was granted by order entered on July 26, 2002.
B. Public Interest Factors
The factor of administrative difficulties caused by court congestion (factor 1) weighs in favor of the Tyler Division. The June 2002 Monthly Statistical Report for the eastern district of Texas indicates that the Beaumont division has twice as many pending cases and more pending cases per district judge than the Tyler division. The factors of local interest in adjudicating local disputes (factor 2) and unfairness of burdening citizens in an unrelated forum with jury duty (factor 3) both clearly favor the Tyler division. The final factor, avoidance of unnecessary problems in conflict of laws (factor 4) is irrelevant in this case.
Both convenience and public interest factors decidedly favor the Tyler division as a more convenient venue for this action. Accordingly, this action is substantially similar to Mills v. Beech Aircraft Corp, Inc., wherein suit was filed in the southern division of Mississippi, but events giving rise to the claim occurred in the Jackson division. 886 F.2d at 761. In addition, most of the factual witnesses were closer to the Jackson division, and plaintiffs did not reside within the southern division. Id. The Fifth Circuit upheld transfer of venue from the southern division to the Jackson division, noting that change of venue to a different division in same district about 150 miles away did not appreciably increase distance required to travel for trial. Id.
RECOMMENDATION
Defendants' motion to transfer venue should be granted.OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b), and 72(b).
A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).