Opinion
EP-01-CA-402-DB
November 15, 2002
ORDER
On this day, the Court considered Defendant Great-West Life Annuity Insurance Company's "Motion to Transfer Venue," filed in the above-captioned cause on September 11, 2002. Plaintiff Petro Stopping Centers, L.P., filed a Response on September 20, 2002. After due consideration, the Court is of the opinion that Defendant's Motion should be denied for the reasons that follow.
BACKGROUND
Plaintiff and Defendant entered into a services contract whereby Defendant would administer a health care payment plan (the "plan") for the benefit of Plaintiff's employees and their dependents. The plan is governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. ("ERISA"). In its Original Complaint, filed in the 346th Judicial District Court of El Paso County, Texas ("state court") on September 18, 2001, Plaintiff alleges that Defendant breached the terms of the services contract by drafting payments out of Plaintiff's bank account after the expiration of their contract on June 1, 2000, and by delaying the processing of claims resulting in Plaintiff having to pay large claims that should have been paid by Defendant. Plaintiff further alleges that Defendant breached its duty of good faith and fair dealing by failing to provide reasonable explanations for Defendant's actions in the performance of the contract terms. Plaintiff seeks compensatory and exemplary damages. On November 5, 2001, Defendant removed this case from state court to this Court, pursuant to 28 U.S.C. § 1446. The instant Motion followed.
DISCUSSION
Defendant asks the Court to transfer this cause to the United States District Court for the Northern District of Texas, Dallas Division, pursuant to 28 U.S.C. § 1404 (a). Plaintiff is a Delaware Limited Partnership with its principal place of business in El Paso County, Texas. Defendant is an insurance company incorporated under the laws of the State of Colorado with its principal place of business in Colorado, and authorized to engage in the insurance business in Texas. Defendant's principal presence in the state of Texas is in Dallas County.
Defendant requests transfer of venue pursuant to 28 U.S.C. § 1404 (a), which provides that, "[for 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.A. § 1404(a) (West 1993). The party seeking the transfer bears the burden of demonstrating that the Court should, in its sound discretion, transfer venue under § 1404(a). Peetet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989). In ruling on a motion to transfer venue, a court must make a "flexible and individualized analysis," weighing factors that are specific to the case. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2244, 101 L.Ed.2d 22 (1988). Preliminarily, the Court notes that the Northern District of Texas is a district in which the case "may otherwise be brought." See 28 U.S.C.A. § 1391(b) (West Supp. 2002). Defendant's principal presence in the state of Texas is in Dallas County, located in the Northern District of Texas. Hence, venue would have been appropriate in the Northern District and the court could have properly exercised personal jurisdiction over the Parties had the cause of action been brought there. TEX. Civ. PRAC. REM. CODE ANN. § 17.042 (Vernon 1991).
Next the Court considers "all the relevant factors to determine whether or not the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different [venue]." Peetet, 868 F.2d at 1436. The following factors are considered relevant: (1) the availability and convenience of witnesses; (2) the availability and convenience of the parties; (3) the place of the alleged wrong; (4) the location of books and records; (5) the possibility of delay or prejudice if transfer is granted; (6) the location of counsel; and (7) the plaintiffs choice of forum. See, e.g., Hall v. Envtl. Chem. Corp., 64 F. Supp.2d 638, 644 (S.D. Tex. 1999).
Here, upon consideration of the evidence submitted and the Parties' arguments, the Court finds that Defendant has not met its burden to show that the balance tips in favor of transferring this cause to the Northern District of Texas.
1. Availability and Convenience of the Witnesses and Parties
Defendant argues that El Paso is a burdensome and inconvenient forum for Defendant and for all of the material non-party witnesses who are expected to testify. Defendant identifies five individuals who allegedly were the most intimately involved in the administration of the plan and have the most knowledge regarding the dispute, and who now reside in or near Dallas County. Defendant contends that these witnesses would have to travel to El Paso at their substantial inconvenience to appear and testify at trial. Defendant further contends that these five witnesses are outside of the Court's 100 mile subpoena range under Federal Rule of Civil Procedure 45.
Typically, the convenience of the witnesses and parties are the most important factors in determining whether a case should be transferred pursuant to 28 U.S.C. § 1404 (a). See Dupre v. Spanier Marine Corp., 810 F. Supp. 823, 825 (S.D. Tex. 1993). Here, Defendant has identified five non-party witnesses who allegedly live in or near Dallas and who would be inconvenienced if they had to travel to El Paso to testify. However, "regardless of whether transfer is sought for key party or non-party witnesses, the moving litigant must make more than a general allegation that the key witnesses are inconveniently located." Mohamed v. Mazda Motor Corp., 90 F. Supp.2d 757, 775 (E.D. Tex. 2000). And, as Plaintiff points out, a two-hour plane ride from Dallas to El Paso does not amount to an extraordinary burden on these witnesses to justify a transfer of the case. Furthermore, Defendant has produced no evidence to suggest that any of the witnesses identified, who are beyond the Western District's subpoena power, would be unwilling to attend a trial in the Western District of Texas. Moreover, Plaintiff has identified at least eight key witnesses, which include seven of its employees and one non-party witness, who are expected to testify and who live in El Paso County.
The Court is fully aware that some of the non-party witnesses identified by Defendant will undergo some inconvenience if they must travel to El Paso to testify at trial, however, such inconvenience is not sufficient to outweigh Plaintiff's choice of forum. Granting a transfer of venue to the Northern District of Texas will only work to shift any inconvenience experienced by Defendant's witnesses to Plaintiff's witnesses. This Court is not inclined to grant a transfer of venue to the Northern District of Texas where the only result is to shift the balance of inconvenience from the moving party to the non-moving party. Furthermore, Defendant presented no evidence to suggest that it would be severely prejudiced if its witnesses were required to appear before this Court. Consequently, the Court finds that this factor weighs against granting Defendant's Motion.
2. Place of the Alleged Wrong
In support of its transfer argument, Defendant alleges that its Dallas Sales Office sold and serviced the contracts at issue, and that this office had the primary responsibility for processing the insurance claims under the contract. Plaintiff counters that the operative events that gave rise to this dispute took place in El Paso, where Plaintiff maintains its principal place of business. The plan, Plaintiff argues, was administered and executed by Plaintiff's employees in El Paso, where the plan administrator and all of the employees are located. Thus, Plaintiff argues that a significant part of the alleged wrong occurred in El Paso.
The Court notes that there can be more than one county in which a substantial part of the events giving rise to the claim occurred. Seariver Maritime Fin. Holdings v. Pena, 952 F. Supp. 455, 458 (S.D. Tex. 1996); CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3806 (Supp. 2002). In this case, the Court finds that Defendant has not shown that enough of the events took place in Dallas to overcome Plaintiff's choice of forum. Thus, the Court is of the opinion that this factor weighs against granting Defendant's Motion.
3. Location of Books and Records
When considering a motion to transfer venue, the location of documents and business records is usually given little weight, unless the documents "`are so voluminous [that] their transport is a major undertaking.'" Gardipee v. Petroleum Helicopters, Inc., 49 F. Supp.2d 925, 931 (E.D. Tex. 1999) (quoting Met-L-Wood Corp. v. SWS Indus., Inc., 594 F. Supp. 706, 710 (N.D. Ill. 1984)). Here, Defendant avers that the bulk of the documentary evidence relevant to this cause is contained in Defendant's records, the majority of which are located in Dallas County. Defendant further avers that Plaintiff has very little documentary evidence that is located in El Paso. Other than those general allegation, however, Defendant has made no showing to suggest that the relevant documentary records in Defendant's possession are so voluminous that transporting them would be impractical. Defendant's general allegation is simply not enough to sustain its burden on this point. See id. at 931-32. Moreover, Plaintiff states that the documentary evidence produced by Plaintiff in response to discovery requests is held by Plaintiff at its headquarters in El Paso. Accordingly, the Court is of the opinion that Defendant has failed to show that the location of the evidence weighs in favor of granting the transfer Motion.
4. Possibility of Delay or Prejudice if Transfer is Granted
Defendant claims that transfer of this case to the Northern District of Texas would cause no delay in the trial of this cause. It is well-settled that a party seeking a transfer should act with "reasonable promptness." Peetet, 868 F.2d at 1436. Here, Defendant filed its Motion to Transfer Venue on September 10, 2002, less than nine weeks before trial is scheduled to begin on December 16, 2002, and more than eleven months after the case was removed. Thus, the Court finds that Defendant did not act with reasonable promptness in seeking a transfer of venue. This factor, therefore, weighs heavily against granting Defendant's Motion.
5. Location of Counsel
With respect to the location of counsel, Defendant has provided no evidence bearing on this issue. There is no indication that traveling to the Western District of the same, albeit large, state would cause such hardship and disruption as to prejudice Defendant. Similarly, Plaintiff's counsel is not likely to be prejudiced by having to travel to the Northern District of Texas. This factor, therefore, is neutral.
6. Plaintiff's Choice of Forum
Finally, the Court considers Plaintiff's choice of forum. In general, a plaintiffs choice of forum is given considerable weight and will not be disturbed unless the other factors weigh substantially in favor of transfer. Texas Eastern Transmission Corp. v. Marine Office-Appleton Cox Corp., 579 F.2d 561, 567 (10th Cir. 1978). As Defendant has raised no factors that weigh in favor of transfer, the Court is unwilling to disturb Plaintiff's choice of forum.
Thus, of the seven relevant factors considered, six weigh against transferring this cause to the Northern District of Texas and one is neutral. Consequently, the Court finds Defendant has failed to meet its burden of demonstrating that the balance of convenience and justice substantially weigh in favor of transferring this cause to the Northern District of Texas.
Accordingly, IT IS HEREBY ORDERED that Defendant Great-West Life Annuity Insurance Company's "Motion to Transfer Venue" is DENIED.