Opinion
Civil Action No. 3:03-CV-0880-D
June 16, 2003
MEMORANDUM OPINION AND ORDER
In this removed action, plaintiff moves to remand the case to state court or to transfer it to another division of this court or to another federal court. For the reasons that follow, the court denies the motion.
I
Plaintiff Larry Howard ("Howard"), proceeding pro se, sued defendant Home Depot U.S. A., Inc. d/b/a The Home Depot ("Home Depot"), in Johnson County, Texas state district court, contending it is liable on theories of breach of express or implied warranty, strict product liability, and negligence for personal injuries he suffered arising from his use of a defective riding mower that he purchased from Home Depot. Home Depot removed the case to this court based on diversity of citizenship. Howard moves to remand for lack of subject matter jurisdiction. Alternatively, he moves to "remand" the case to Fort Worth Division of this court or to the Waco Division of the Western District of Texas, which the court treats as a motion to transfer.
II
Howard moves to remand this case on the ground that the court lacks subject matter jurisdiction. He maintains that Home Depot removed the case to the wrong federal court, Home Depot is a citizen of Texas, there is no federal question jurisdiction, and Greg Parks ("Parks"), the manager of the Home Depot store from which he purchased the riding mower, is a Texas citizen. The court disagrees.Howard filed this lawsuit in Johnson County, Texas. Johnson County is located in the Dallas Division of the Northern District of Texas. See 28 U.S.C. § 124(a)(1). A case must be removed to "the district court of the United States for the district and division within which such action is pending." 28 U.S.C. § 1446 (a). Accordingly, Home Depot properly removed the case to the Dallas Division of this court.
Home Depot is not a Texas citizen. Under 28 U.S.C. § 1332(c)(1), "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." Home Depot is incorporated in Delaware and has its principal place of business in Georgia.
The fact that there is no federal question jurisdiction is not controlling. Even if a case does not involve a question of federal law, this court has subject matter jurisdiction if the suit is "between citizens of different states" and the "matter in controversy exceeds the sum or value of $75,000." 28 U.S.C. § 1332(a). Howard, a Texas citizen, sues Home Depot, a citizen of Delaware and Georgia, for $10 million in damages. "Ordinarily, the plaintiffs claim with respect to the value of the property taken from him or the amount of damages incurred by him through the defendants' wrongful act measures, for jurisdictional purposes, the value of the matter in controversy[.]" Smithers v. Smith, 204 U.S. 632, 642 (1907). Therefore, the parties are diverse citizens and the amount in controversy requirement is satisfied.
Parks' citizenship is irrelevant because he is not a party to the case. See 28 U.S.C. § 1332(a) (basing diversity jurisdiction on citizenship of parties to civil action).
The court has subject matter jurisdiction, and this case was properly removed. Howard's motion to remand is denied.
III A
Howard also moves the court to "remand" the case to the Fort Worth Division of this court or to the Waco Division of the Western District of Texas. Howard resides in Hill County, Texas, which is adjacent to Johnson County. Hill County is adjacent to McLennan County, where Waco is located. Johnson County is adjacent to Tarrant County, in which Fort Worth is located. Howard thus contends that Waco and Fort Worth are both more convenient locations than is Dallas. The court liberally construes this "remand" request as a motion to transfer. See, e.g., Hooks v. Army Air Force Exch. Serv., 944 F. Supp. 503, 505 (N.D. Tex. 1996) (Fitzwater, J.) (holding that pro se pleadings must be construed liberally). It appears from Howard's pleadings that he is seeking a transfer under § 1406 on the grounds that venue is incorrect, or under § 1404(a) for the convenience of the parties and the witnesses.
B
Where venue is in the wrong division or district, a court may either dismiss or transfer the case. See 28 U.S.C. § 1406(a). Venue is proper, however, in this court. Howard filed suit in Johnson County, the location of the Home Depot store where "a substantial part of the events or omissions giving rise to the claim occurred[.]" 28 U.S.C. § 1391(a). As noted supra at § II, Home Depot properly removed the case to this court. Therefore, § 1406 does not provide grounds to transfer this case.
C
Because venue is proper here, any transfer must occur under § 1404(a) "[f]or the convenience of parties and witnesses, in the interest of justice[.]" 28 U.S.C. § 1404(a). Although Howard selected the original forum, he can seek a transfer under § 1404(a), See Ferens v. John Deere Co., 494 U.S. 516, 531 (1990) (holding that transferor law is the same "regardless of who makes the § 1404(a) motion").
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." The decision to transfer is made to prevent waste of time, energy, and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense.Bank One, N.A. v. Euro-Alamo Invs., Inc., 211 F. Supp.2d 808, 811 (N.D. Tex. 2002) (Fitzwater, J.) (citing Stabler v. N.Y. Times Co., 569 F. Supp. 1131, 1137 (S.D. Tex. 1983)). To decide whether a case should be transferred under § 1404(a)
[t]he court considers several factors in their totality, including (1) plaintiffs choice of forum; (2) the availability of compulsory process for the attendance of unwilling witnesses; (3) the cost of obtaining the attendance of willing witnesses; (4) the accessibility and location of sources of proof; (5) the relative congestion of the courts' dockets; (6) the accessibility of the premises to jury view; (7) the relation of the community in which courts and the jurors are required to serve to the occurrence giving rise to the suit; and (8) the time, cost, and ease with which the trial can be conducted, and all other practical considerations relative to the trial and determination of the case.Id. at 811-12 (citing Fletcher v. S. Pac. Tramp, Co., 648 F. Supp. 1400, 1401 (E.D. Tex. 1986); Greiner v. Am. Motor Sales Corp., 645 F. Supp. 277, 278 (E.D. Tex. 1986)). Howard bears the burden of proving that transfer is appropriate. See Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966).
The court concludes that a transfer under § 1404(a) is not supported by the record. Howard bases his argument on the convenience of the witnesses and the parties. Basing a transfer on the convenience of the witnesses requires a particularized showing regarding why transfer is necessary, including identification of key witnesses and the general content of their testimony. See Young v. Armstrong World Indus., Inc., 601 F. Supp. 399, 401-02 (N.D. Tex. 1984) (Sanders, J.). Howard has not identified any witnesses, and the court cannot therefore determine the "availability of compulsory process to compel unwilling witnesses" and the "cost of obtaining the attendance of willing witnesses." Howard has not met his burden of proving that a transfer is warranted for the convenience of the witnesses.
Howard also argues that the case should be transferred for his own convenience. He posits that his ill health will make it more difficult to travel to Dallas rather than to Fort Worth. In Huisman v. Geuder, Paeschke Frey Co., 250 F. Supp. 631 (E.D. Wis, 1966), the plaintiff sought a venue transfer to the Northern District of Ohio, where she resided, from the district where she had originally filed suit. The district court found that "[t]he fact that plaintiff resides in the Northern District of Ohio is insufficient of itself to require a transfer of venue to that district, particularly when the plaintiff has chosen a different forum." Id. at 632 (citing Chicago, Rock Island and Pac. R.R. Co. v. Igoe, 220 F.2d 299, 303 (7th Cir. 1955)). The court declines to transfer this case on this basis.
Howard presents no arguments in his motion that demonstrate how a transfer would serve the interests of justice by increasing "the accessibility and location of sources of proof and "the accessibility of the premises to jury view," easing "the relative congestion of the courts' dockets," lessening "the time, cost, and ease with which the trial can be conducted," or by increasing "the relation [between] the community in which courts and the jurors are required to serve to the occurrence giving rise to the suit." Because Howard does not raise any of these issues in his brief, the court cannot determine whether any of these factors would prove that transfer is appropriate. "Section 1404(a) provides for transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient." Van Ousen v. Barrack, 376 U.S. 612, 645-46 (1964). By not raising any of these issues, Howard has failed to demonstrate that the case should be transferred.
Howard's motion to remand and to transfer is denied.
SO ORDERED.