Opinion
Civil Action No. SA-06-CA-0147-XR.
September 7, 2006
ORDER
On this date, the Court considered Defendants Mark Scott and Denise Austin (collectively referred to herein as "Defendants") motion to transfer venue (Docket No. 44). Pursuant to 28 U.S.C. § 1404 and Federal Rule of Civil Procedure 12(b)(3), Defendants now move to transfer to the Western District of Texas, Del Rio Division on the grounds that venue in the Western District of Texas, San Antonio Division is inconvenient to the Defendants and Defendants' witnesses. For the reasons discussed below, Defendants' motion to transfer venue is DENIED (Docket No. 44).
I. Factual and Procedural Background
On January 27, 2004, LeTisha Tapia was arrested by the United States Marshals Service for possession of marijuana and incarcerated at the Val Verde County Correctional Facility. During Tapia's incarceration, she allegedly reported to prison authorities that minimum security female inmates were accessing the maximum security block and having sexual relations with male inmates. Tapia allegedly reported this activity to Warden Scott in April 2004, but the sexual relations continued. Other female inmates allegedly learned of Tapia's report and accused her of being a snitch. To prove she was not a snitch, Tapia was allegedly coerced into a maximum security male inmate's cell and raped. Tapia allegedly reported the rape to prison authorities, including Warden Scott and Dugger.
Subsequent to the rape, Tapia's mental condition began to deteriorate. On July 14, 2004, Tapia allegedly suffered an anxiety attack and notified correctional officers through a written medical request marked "URGENT" that she had previously taken psychiatric medication and attempted to commit suicide. Eight days later, on July 22, 2004, Tapia was examined by a prison psychiatrist. The psychiatrist neither prescribed Tapia any medication nor scheduled any further appointments. During the course of the examination, Tapia was left alone, found a portable telephone, and hid the telephone in her pants to use later in her cell.
After returning to her cell, Tapia and other female inmates were caught by correctional officers attempting to use the phone. Defendant Dugger allegedly responded to Tapia's cell, began yelling at her, and slammed her against the wall. Dugger and his fellow correctional officers allegedly ransacked Tapia's cell and destroyed her personal property. Dugger continued yelling at Tapia, questioning her about the phone, and allegedly kicked her and order her to be strip-searched.
Following the strip-search, Tapia hid in the prison showers, refused to come out, and threatened to kill herself if placed in segregation. Dugger allegedly dragged Tapia from the showers and placed her in a segregation cell. Tapia was allegedly provided neither clothes nor blankets.
The next morning, on July 23, 2004, Correctional Officer Yolanda Castillo provided Tapia with clothes and blankets. At approximately 5:30 p.m., Tapia was served dinner in her segregation cell. Three hours later, Tapia was found hanging by a bed sheet. Tapia was pronounced dead at the scene.
On February 15, 2006, Tapia's mother (Charlotte DeHoyos), father (Gerald Hungerford), and husband (Eliodoro Tapia), individually and as the representative of her estate and minor child (collectively, "Plaintiffs"), filed suit in the Western District of Texas, San Antonio Division against various correctional officers in their official and individual capacities, GEO, the United States Marshals Service, Val Verde County, and Val Verde County Sheriff D'Wayne Jernigan alleging violations of the Americans with Disabilities Act, section 504 of the Rehabilitation Act, Texas Tort Claims Act, Federal Tort Claims Act, Texas Wrongful Death Act, federal due process, and common law tort causes of action.
II. Legal Analysis
Defendants argue that venue is proper in the Western District of Texas, Del Rio Division pursuant to 28 U.S.C. § 1391(b)(2) because all or a substantial part of the events giving rise to Plaintiffs' claims occurred in the Del Rio Division. The Court agrees. However, venue is also proper in the Western District of Texas, San Antonio Division pursuant to 28 U.S.C. § 1391(b)(2) because the federal venue statute is based on "judicial districts," not "divisions." See 28 U.S.C. § 1391. Specifically, section 1391(b) provides that a civil action wherein jurisdiction is not founded on diversity of citizenship may be brought in:
(1) a judicial district where any defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, . . . or,
(3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.28 U.S.C. § 1391(b) (emphasis added). Defendants' argument that "a substantial part of the events or omissions giving rise to the claim occurred" in the Del Rio Division, while factually correct, is irrelevant to determining whether the San Antonio Division is proper. The San Antonio Division and Del Rio Division both lie in the Western District of Texas. Venue is clearly proper in the Western District of Texas pursuant to section 1391(b)(2) because, as Defendants concede, a substantial part of the events or omissions giving rise to Plaintiff's claim occurred in Western District of Texas. Thus, it was proper for Plaintiffs to file their complaint in the Western District of Texas, San Antonio division pursuant to section 1391(b)(2). Defendants' statement that "venue is not proper in the San Antonio Division" is incorrect.
In their complaint, Plaintiffs allege that venue is proper under 28 U.S.C. § 1391(b)(1) because Defendant Mary Zubov-Zuniga resides in the Western District of Texas. Plaintiffs further allege that venue is proper in this court under 28 U.S.C. § 1391(c) because Defendant GEO maintains a regional corporate office in New Braunfels, which is within the Western District of Texas (See Complaint, Docket No. 1, ¶ 6). In their motion, Defendants argue that 28 U.S.C. § 1391(b)(1) is not applicable because Plaintiffs have failed to show that all Defendants reside in the same state. Specifically, Defendants allege that Defendants Alicia Ramirez and Amalia Maldonado currently reside in and are employed by GEO as civilian employees at the U.S. Naval Installation Guantanamo Bay, Cuba. As such, Defendants argue that 28 U.S.C. § 1391(b)(2) is the controlling venue subsection in this case.
As the Court has already discussed, venue is proper in the Western District of Texas, San Antonio Division pursuant to 28 U.S.C. § 1391(b)(2). The Court hesitates to accept Defendants' statement that Defendants Ramirez and Maldonado "reside" at Guantanamo Bay, Cuba for purposes of the federal venue statute. However, since venue would be proper in the Western District of Texas, San Antonio Division under either 28 U.S.C. § 1391(b)(1) or 28 U.S.C. § 1391(b)(2), the Court need not address the issue of whether Defendants Ramirez and Maldonado "reside" at Guantanamo Bay, Cuba or whether they "reside" in the Western District of Texas.
It is clear that venue in the Western District of Texas, San Antonio Division is proper. Nevertheless, the Court has discretion to transfer this case to the Del Rio Division pursuant to 28 U.S.C. § 1404 "for the convenience of parties and witnesses" and "in the interests of justice." In particular, 29 U.S.C. § 1404(b) states that a civil action "may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district." In choosing whether to exercise the discretion allowed by section 1404(b), the Court will base its decision on the established standard governing section 1404(a) transfers. Defendants argue that allowing the case to proceed in the San Antonio Division is inconvenient because "no events made the basis of this suit occurred in Bexar County, Texas and Bexar County has no connection at all with this suit." (Motion To Transfer, Docket No. 44, ¶ 5). Furthermore, Defendants argue that the Court should grant the section 1404 transfer because the majority of Defendants' witnesses reside in the Del Rio Division. Defendants make the conclusory allegation that "Plaintiffs will not be prejudiced if the Court grants Defendants' Motion to Transfer Venue" under 28 U.S.C. § 1404.
The Court has already denied five separate, yet identical motions of Defendants GEO, Mijares, Quintero, Reyes, Perez, Zubov-Zuniga, Dugger, Val Verde County, and Jernigan to transfer venue from the Western District of Texas, San Antonio Division to the Western District of Texas, Del Rio Division pursuant to 28 U.S.C. § 1404 (Docket No. 30). The Court DENIES the pending motion to transfer for the same reasons that it denied the previous five motions to transfer. The Court will again reiterate those reasons. The Court disagrees with Defendants' statement that "Plaintiffs can offer no legitimate reason in support of keeping this case in the San Antonio Division."
Whether a transfer of venue is "convenient" and "in the interests of justice" turns on a number of private and public interest facts, none of which are dispositive. Action Indus., Inc. v. U.S. Fidelity Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004) (citing Syndicate 420 at Lloyd's London v. Early Am. Ins. Co., 796 F.2d 821,827 (5th Cir. 1986)). The private interests include: (1) the relative ease 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. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6 (1981). The public interests include: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws. Id. A plaintiff's choice of forum is "clearly a factor to be considered but in and of itself is neither conclusive nor determinative." In re Horseshoe Entm't, 337 F.3d at 434. The Defendants have the burden of demonstrating that the convenience of the parties and interests of justice weigh heavily in favor of transfer. Thompson v. Handa-Lopez, 998 F.Supp. 738, 745 (W.D. Tex. 1998).
1. Private interest factors.
a. Relative ease to sources of proof.
Plaintiffs' lawsuit is based entirely on alleged incidents that occurred at the Val Verde County Correctional Facility, Val Verde County, Texas. As previously noted, Val Verde County is located within the Western District of Texas, Del Rio Division. The majority of the evidence to be presented in this case is likely located in the Del Rio Division. Technological advances in copying, storing, and transferring data, however, limit the weight to be given the accessibility and location of sources of proof in the § 1404(a) analysis. This factor only slightly weighs in favor of transferring the case to the Del Rio Division.
b. Availability of compulsory process.
The non-party witnesses identified by the Defendants all reside in the Del Rio Division. Each of these witnesses would appear to be outside this Court's subpoena power. The Defendants, however, do not claim that compulsory process would be necessary to secure the testimony of any of these witnesses if the Court denies their motions to transfer venue.
The Court notes subpoenas issued to non-party witnesses that reside outside the district court's 100-mile subpoena power are subject to motions to quash. FED. R. CIV. P. 45(c)(3); In re Volkswagen, 371 F.3d 201, 205 n. 4 (5th Cir. 2004).
Plaintiffs have identified four non-party witnesses, Cheryl Rivas, Irene Rodriguez, Thai Sharkey, and Anthony Ramirez, in their convenience analysis. Rivas, Rodriguez, Sharkey, and Ramirez are current and/or former inmates who were incarcerated with Tapia in the Val Verde County Correctional Facility. Rivas (lives in Austin, Texas) and Ramirez (incarcerated in Cotulla, Texas) are located within the 100-mile subpoena range of the San Antonio Division, but outside the reach of the Del Rio Division. Hernandez and Sharkey are incarcerated in Marlin, Texas, 184 miles from San Antonio and 338 miles from Del Rio. Plaintiffs allege that compulsory process would be necessary to obtain the testimony of each of these witnesses.
Because Plaintiffs have identified non-party witnesses for whom compulsory process would be necessary that reside within the subpoena power of the San Antonio Division, but outside the subpoena power of the Del Rio Division, this factor favors denying transfer.
c. Willing witnesses' cost of attendance.
The Defendants focus their venue arguments on the inconvenience of a trial in the San Antonio Division for both party and non-party witnesses. The convenience and costs of non-party witnesses is more important and is given greater weight than convenience of party witnesses. Zoltar Satellite Sys. v. LG Elecs. Mobile Comme'ns Co., 402 F. Supp. 2d 731, 739 (E.D. Tex. 2005). "[V]enue is considered convenient in the district or division where the majority of witnesses are located." Robertson v. Kiamichi R.R. Co., 42 F. Supp. 2d 651, 657 (E.D. Tex. 1999). "Another consideration in analyzing the availability and convenience of witnesses is where the only result is to shift the balance of inconveniences from the moving party to the non-moving party." Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 826 (S.D. Tex. 1993). Establishing witness inconvenience requires a party to do more than make a general allegation that key witnesses are inconveniently located. Mohamed v. Mazda Motor Corp., 90 F. Supp. 2d 757, 775 (E.D. Tex. 2000). The moving party must specifically identify the witnesses and outline the substance of their testimony. Id.
Here, the Defendants have failed to carry their burden. The motion to transfer venue merely state that Plaintiffs' alleged facts indicate that the key parties and witnesses all reside in the Western District of Texas, Del Rio Division and the cost of obtaining the attendance of witnesses in the Western District of Texas, San Antonio Division, is higher. The 155-mile distance between San Antonio and Del Rio would necessarily impose additional travel costs on the Defendants' non-party witnesses. This roughly two-and-one-half hour drive, however, would not require these non-party witnesses to incur overnight lodging costs. The Court recognizes that attending trial in San Antonio would require the Defendants themselves to incur additional travel and lodging costs.
Maintaining this case in San Antonio is more convenient for Plaintiffs and their four non-party witnesses. Specifically, Eliodoro Tapia and his minor son live in San Antonio; Hungerford lives in Victoria, Texas, 115 miles from San Antonio and 265 miles from Del Rio; and DeHoyos is incarcerated in Gatesville, Texas, 175 miles from San Antonio and 323 miles from Del Rio. As discussed above, San Antonio is a more geographic friendly location for Plaintiffs' non-party witnesses. Plaintiffs also point out that Defendant Zubov-Zuniga resides in San Antonio. Plaintiffs would incur additional travel and lodging expenses if this action is transferred to the Del Rio Division.
Although the Defendants' witnesses outnumber Plaintiffs' witnesses, section 1404(a) convenience transfer is not a "battle of numbers." See Mohamed, 90 F. Supp. 2d at 777 (citing 15 WRIGHT, MILLER, COOPER, § 3851 at 424-25 (2d ed. 1986)). With regard to both the party and non-party witnesses, transferring this action to the Del Rio Division would merely shift the costs of obtaining those witnesses testimony from the Defendants to Plaintiffs. Because the Defendants have failed to identify the substance of their non-party witnesses' testimony, the court is unable to fully balance the alleged convenience, or inconvenience, of such witnesses testifying in San Antonio versus Del Rio, and vice versa. Id. at 775 n. 19. Accordingly, this factor is neutral and neither favors nor discourages transfer.
d. All other practical problems.
The Defendants do not identify any other practical problems that should be considered in the Court's § 1404(a) analysis. Plaintiffs' need to rely on the testimony of incarcerated witnesses (and the fact that Plaintiff DeHoyos is incarcerated) does raise issues. The Court agrees with Plaintiffs that transporting inmates over long distances poses practical problems and the distance they must be transported should be minimized. As each incarcerated witness resides closer to San Antonio than Del Rio, this factor favors maintaining this action in the San Antonio Division.
2. Public interest factors.
a. Administrative difficulties flowing from court congestion.
As of the date of this order, the undersigned Judge has 168 civil and 138 criminal cases pending. The Honorable Alia Ludlum, United States District Judge for the Western District of Texas, Del Rio Division, currently has 60 civil and 664 criminal cases pending. Based upon the pending case load of each Judge, it would appear that this case will be tried in the San Antonio Division at an earlier date. This factor weighs in favor of maintaining this action in the San Antonio Division.
b. Localized interest in resolving controversies.
While the Western District of Texas has a general interest in resolving this case, Plaintiffs' allegations focus on the conduct of residents of the Del Rio Division and the Val Verde County Correctional Facility. San Antonio's proximity to Del Rio and the fact that the San Antonio Division is still located within the Western District of Texas limits, but does not negate, the Del Rio Division's interests. This factor favors transferring the case to the Del Rio Division.
c. Familiarity with the law that will govern the case.
Neither the San Antonio Division nor the Del Rio Division has a greater familiarity with the federal and state laws and legal issues presented in this action. This factor is neutral.
d. Avoidance of unnecessary problems of conflict of laws.
The action was brought under federal statutory law, and Texas statutory and common law. There are no apparent conflict of laws issues. This factor is neutral and neither favors nor discourages transfer.
The Defendants have failed carry their burden and demonstrate that transferring this case to the Del Rio Division would be more convenient for the parties and in the interests of justice. Transferring this action to the Del Rio Division would do nothing more than shift the costs and burdens of trying this action in a different locale from the Defendants to Plaintiffs. Accordingly, the Defendants have not given the Court sufficient reason to disallow Plaintiffs' chosen venue.
III. Conclusion
Defendants' motion to transfer venue is DENIED (Docket No. 44).