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holding that this factor was neutral where movants had not clearly demonstrated the number and volume of documents and records
Summary of this case from Wise v. CB Richard Ellis, Inc.Opinion
Civil Action No. 3:03-CV-0846-D
July 31, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff Richard Lynn Kettler ("Kettler"), on his behalf and on behalf of those similarly situated, sues defendant Presstek, Inc. ("Presstek") under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201-219 ("FLSA"). Presstek moves to transfer the case to the District of New Hampshire under 28 U.S.C. § 1404(a). For the reasons that follow, the court grants the motion.
I
Presstek is a Delaware corporation with its principal place of business in Hudson, New Hampshire. D. Mot. § 1. Kettler is a citizen of Texas, see Compl. ¶ 2, and a former Presstek Customer Service Representative ("CSR"), see David Ventola ("Ventola") Decl. ¶ 6. Presstek employs or has employed — both in New Hampshire and in several other states — sixteen people as CSRs. See id. Kettler alleges that Presstek improperly classified the CSRs as exempt from overtime pay, in violation of the FLSA. See Compl. ¶ 1. He sues under 29 U.S.C. § 216(b) as a representative of a class of similarly situated CSRs. Section 216(b) authorizes actions "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing[.]" Id. Three former or current CSRs have opted in as plaintiffs. See Compl. Ex. B. Howard Walter Cox II ("Cox") and James Michael Croft ("Croft") are citizens of the Western District of North Carolina, and Rick A. Cote ("Cote") is a citizen of the District of New Hampshire. Id.
The court is citing Presstek's evidence by the paragraphs of Ventola's declaration rather than of Presstek's appendix because it did not comply with N.D. Tex. Civ. R. 7.1(i)(1) and 7.2(e) in briefing this motion. Rule 7.1(i)(1) provides that "[a] party who relies on documentary (including an affidavit, declaration, deposition, answer to interrogatory, or admission) or non-documentary evidence to support or oppose a motion must include such evidence in an appendix." Rule 7.2(e) states that "[i]f a party's motion or response is accompanied by an appendix, the party's brief must include citations to each page of the appendix that supports each assertion that the party makes concerning any documentary or non-documentary evidence on which the party relies to support or oppose the motion." Presstek should have included the Ventola declaration in an appendix and should have cited the declaration by the appendix page, not the paragraph of the declaration. Nevertheless, because the declaration is only three substantive pages and these procedural deficiencies have not interfered with the decisional process of the court, the court has considered the declaration and briefing that Presstek has submitted.
Cox resides in Spruce Pine, North Carolina, which is located in Mitchell County. Croft resides in Mt. Holly, North Carolina, which is located in Gaston County. Under 28 U.S.C. § 113(c), Mitchell County and Gaston County are both located in the Western District of North Carolina.
Presstek posits that "CSRs working outside of New Hampshire typically set up an office in their homes. Ideally, each CSR is responsible for a three to five state territory in the general vicinity of their home[.]" Ventola Decl. ¶ 4. Kettler worked for Presstek in 2000 and 2001, see id. at ¶ 5, and "performed services in the Dallas-Fort Worth area[,]" Compl. ¶ 5. Kettler does not contest Presstek's assertions regarding the typical location of CSR offices and ideal geographic areas of responsibility.
II A
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)).
The court considers several factors in their totality, including (1) plaintiff's 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. Transp. 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)).
The moving parties bear the burden of proving by a preponderance of the evidence that transfer is appropriate. This requires a particularized showing regarding why transfer is necessary, including identification of key witnesses and the general content of their testimony.Id. at 812 (citations omitted). The court should not transfer venue where the result will be merely to shift the burden of the trial from one party to the other. Enserch Int'l Exploration, Inc. v. Attock Oil Co., 656 F. Supp. 1162, 1167 n. 15 (N.D. Tex. 1987) (Fitzwater, J.).
Although Kettler's counsel offices in this district, the convenience of counsel is irrelevant to the § 1404(a) equation. See Young v. Armstrong World Indus., Inc., 601 F. Supp. 399, 402 (N.D. Tex. 1984) (Sanders, J.) (holding that "convenience of counsel is not an appropriate consideration").
B 1
Under the first factor, the court considers Kettler's choice of forum. Although his choice of forum is usually entitled to substantial weight and should be highly esteemed, see Bank One, 211 F. Supp.2d at 812, the weight to be accorded may be diminished when a plaintiff brings suit outside his home forum, see Alexander Alexander, Inc. v. Donald F. Muldoon Co., 685 F. Supp. 346, 349 (S.D.N.Y. 1988). Kettler is a citizen of "West, McLennon County, Texas." Compl. ¶ 2. His home forum is therefore located in the Western, not the Northern, District of Texas. See 28 U.S.C. § 124(d)(2). Kettler has filed suit outside his home forum, and his choice is therefore accorded reduced weight.
2
The court next considers the availability of compulsory process for the attendance of unwilling witnesses. Neither Presstek nor Kettler has identified any potential witnesses who are subject to compulsory process in the Northern District of Texas. Presstek identifies four former CSRs who would be subject to compulsory process in the District of New Hampshire. See Ventola Decl. ¶¶ 6-7. Presstek suggests the possibility that compulsion of these witnesses may be "necessary," see D. Br. at 6, but has not explicitly indicated an intention to call any of them as witnesses, nor has it specified which of them is unwilling to testify. Accordingly, the court finds that this factor is neutral.
3
The court now considers the cost of obtaining the attendance of willing witnesses. Presstek identifies six anticipated witnesses, see id. at 3, and it specifies the general content of their testimony, see Ventola Decl. ¶ 8. These witnesses have "knowledge about the type of work performed by the CSRs as well as the wages they received[.]" See id. Each works at Presstek's office in Hudson, New Hampshire, see id. at ¶ 9, and is therefore inconvenienced by Kettler's choice of forum.
Kettler suggests that the convenience of Presstek's witnesses should be accorded less weight because the court should give "less consideration to the convenience of witnesses who are employees of a party, as their testimony can be compelled." P. Br. at 6-7 (citing TIG Ins. Co. v. NAFCO Ins. Co., 177 F. Supp.2d 561, 569 (N.D. Tex. 2001) (Sanders, J.)). Because Kettler appears to be the sole anticipated witness for his side and is himself a party, this argument also applies to him.
Kettler maintains that he is the key witness in the case, see P. Br. at 7, and does not indicate that he intends to call anyone else as a witness. Kettler will testify as to "his job duties in Texas[.]" Id. By bringing suit outside his home forum, however, Kettler has indicated that at least a modest amount of travel is not unacceptably inconvenient.
Although neither side indicates that any other plaintiff will testify, the court notes that Cox, Croft, and Cote would not be further inconvenienced by transferring the case. As citizens of North Carolina, some amount of travel is inevitable for Cox and Croft if they are to attend. Cote is a citizen of New Hampshire, and he would be convenienced by a transfer.
The court must weigh the inconvenience to Kettler if transfer is granted against the inconvenience to Presstek's six identified witnesses if transfer is denied. The court finds that Kettler's choice of forum results in a clear balance of inconvenience to Presstek's identified witnesses. This factor therefore weighs in favor of transferring the case.
The emphasis in the weighing is on the showing of key witnesses to be called and the general content of their testimony rather than on numbers. See 15 Charles Alan Wright, et al., Federal Practice and Procedure § 3851, at 425 (2d ed. 1986).
Both Kettler and Presstek have referred to the twelve identified current and former CSRs who have not opted in this action as "witnesses[.]" See D. Br. at 5; P. Br. at 7. Because neither party has explicitly indicated an intention to present the testimony of any of these CSRs at trial, the court has not included them in weighing inconvenience. The court notes, however, that these twelve potential witnesses include five citizens of New Hampshire and no citizens of Texas. See Ventola Decl. ¶ 6. Taken as a whole, therefore, this group of potential witnesses would, if anything, be convenienced by a transfer.
4
The court next addresses the accessibility and location of sources of proof. Presstek presents evidence that it "keeps all of its documents and employee records at its offices in Hudson, New Hampshire." See Ventola Decl. ¶ 10. These documents and records include "personnel and payroll files for all of the CSRs, as well as documentation describing their job duties." Id. Presstek presents no evidence indicating the number or volume of these documents or the potential inconvenience of transporting them. Kettler cites no evidence of any documents located in or near the Northern District of Texas, and he concedes that documents may be located in New Hampshire. Kettler contends that this factor has little significance, however, due to the availability of communications technology and because it is unlikely that all the records will be needed for trial. See P. Br. at 8. Because Presstek has not clearly demonstrated the number and volume of documents and records located in New Hampshire, the court finds that this factor is neutral.
5
The factors that take into account the relative congestion of the courts' dockets, the accessibility of the premises to jury view, the time, cost, and ease with which the trial can be conducted, and all other practical considerations relative to the trial and determination of this case do not weigh in favor of either forum, and neither party has adequately addressed these elements.
6
The court now considers the relation of the community in which the courts and the jurors are required to serve to the occurrence giving rise to the suit. Kettler maintains that he "performed services in the Dallas-Fort Worth area[,]" see Compl. ¶ 5, so this action is not without connection to the Northern District of Texas. Litigating this case in this district, however, would force citizens to serve on a jury to resolve a dispute between, on the one hand, a citizen of the Western District of Texas, two citizens of North Carolina, and a citizen of New Hampshire and, on the other hand, a company that no longer employs any CSRs in the state of Texas and has its principal place of business and sole headquarters in New Hampshire. This factor weighs in favor of transferring the case.
7
Having considered the factors together, the court holds that it should transfer this case to the District of New Hampshire for the convenience of the parties and witnesses and in the interest of justice.
* * *
Accordingly, Presstek's June 16, 2003 motion to transfer is granted. The clerk of court shall effect the transfer to the District of New Hampshire according to the usual procedure.
SO ORDERED.