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Not Reported in F.Supp.2d, 2003 WL 22976283 (E.D.Tex.)


United States District Court,
E.D. Texas, Beaumont Division.
Andrew COLE, Sr., Plaintiff,
v.
SHERMAN FINANCIAL GROUP LLC, et al., Defendants.
No. 1:03-CV-271.
Oct. 28, 2003.

MEMORANDUM AND ORDER

CLARK, J.
*1 Before the Court is Defendant Sherman Financial Group's ("Sherman") 12(b)(3) Motion to Dismiss for Improper Venue or in the alternative Motion to Transfer Venue for Convenience pursuant to 28 U.S.C. § 1404(a) [Doc. # 33]. Sherman's previous Motion to Dismiss for Improper Venue [Doc. # 13] was denied. Since Sherman has not adequately presented anything new in the present Motion to Dismiss for Improper Venue, the Court finds the motion merely repetitive and again it is DENIED.
Likewise, since Sherman's Motion to Transfer Venue for Convenience fails to meet the statutory requirements, that alternative motion [Doc. # 33] is also DENIED.

BACKGROUND
On July 24, 2003, the parties came before the Court for a case management conference. At that time, counsel for the Plaintiff and Choicepoint notified the Court that a settlement had been reached as between those two parties. Counsel for Sherman, and the attorneys for each of the other Defendants agreed that each did some business in Jefferson County, including the transaction with Plaintiff Cole. The Court found that venue was proper in this Court under 28 U.S.C. § 1391. Therefore, Sherman's Motion to Dismiss for Improper Venue filed June 18, 2003 was denied. At that time the Court allowed Defendants and Plaintiff an additional seven days to file motions regarding their arguments to transfer venue for convenience pursuant to § 1404(a). Sherman filed the present Motion to Dismiss for Improper Venue or, in the alternative, Motion to Transfer Venue for Convenience and Plaintiff filed a Response to Defendant's Motion to Transfer Venue that same day. The remaining Defendants in the case did not file motion papers on this issue.
Sherman asks this Court to consider a discretionary transfer of venue for the convenience of the parties and witnesses to the United States District Court for the Southern District of Texas, Houston Division, pursuant to § 1404(a). That statute 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." 28 U.S.C. § 1404(a).

STANDARD OF REVIEW
The goal of § 1404(a) "is to prevent waste of time, energy, and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). "A defendant who desires a transfer of venue carries the burden to convince a transferor court that a transfer would be more convenient." TV-3, Inc. v. Royal Ins. Co. of American, 28 F.Supp.2d 407, 411 (E.D.Tex.1998). The quantum of proof necessary has sometimes been described to be as stringent as "clear and convincing evidence." TV-3, Inc., 28 F.Supp.2d at 411. Consequently Sherman must carry a heavy burden to prove that these factors clearly favor such a change.

DISCUSSION OF TRANSFER FACTORS
*2 "The first issue that a district court must address in ruling on a motion to transfer under § 1404(a) is the question of whether the judicial district to which transfer is sought qualifies under the applicable venue statutes as a judicial district where the civil action 'might have been brought." ' In re Horseshoe Entm't, 337 F.3d 429, 433 (5th Cir.2003). This Court finds a basis to establish that the case may have initially been brought in the Southern District of Texas, Houston Division pursuant to 28 U.S.C. § 1391. Defendant Sherman's place of business is in Houston, Texas. There is evidence that acts relevant to this suit occurred, and property subject to this litigation is located, in Houston. With this threshold issue resolved, the Court's analysis turns to the ten factors governing this Circuit's § 1404(a) analysis.
"In determining whether an action should be transferred under § 1404(a) the court examines factors which fall into two groups: (1) those relating to the convenience of the litigants, [FN1] and (2) those relating to the public interest in the fair and efficient administration of justice." Mohamed v. Mazda Motor Corp., 90 F.Supp.2d 757, 771 (E.D.Tex.2000) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)). The convenience factors include: (1) plaintiffs choice of forum; (2) the convenience of parties and witnesses; (3) the place of the alleged wrong; (4) the cost of obtaining the attendance of witnesses and availability of compulsory process; (5) the accessibility and location of sources of proof; and (6) the possibility of delay and prejudice if transfer is granted. See 17 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE §§ 111.13, et seq. (3d ed.1997); Robertson v. Kiamichi R.R. Co., 42 F.Supp.2d 651, 655 (E.D.Tex.1999). The public interest factors consist of (1) the administrative difficulties caused by court congestion; (2) the local interest in adjudicating local disputes; (3) the unfairness of burdening citizens in an unrelated forum with jury duty; and (4) the avoidance of unnecessary problems in conflict of laws.


FN1. In this Circuit, "[t]he factor of 'location of counsel' is irrelevant and improper for consideration in determining the question of transfer of venue." In re Horseshoe Entm't, 327 F.3d at 434. Therefore, while Sherman discusses at great length, the location of counsel in this suit, such argument is irrelevant for this Court's analysis.



A. Convenience Factors
1. Plaintiff's Choice of Forum
"The plaintiff's choice of forum is clearly a factor to be considered but in and of itself it is neither conclusive nor determinative." In re Horseshoe Entm't, 337 F.3d at 434. The significant weight given to a plaintiff's choice of forum is diminished when the plaintiff does not reside in his chosen forum nor have any operative facts occurred within the forum. See Robertson v. Kiamichi Railroad Co., LLC., 42 F.Supp.2d 651, 656 (E.D.Tex.1999). Here, Sherman has argued that Plaintiff currently resides much closer to Houston, Texas than to Beaumont and that the operative facts did not occur in the Eastern District of Texas. See Def. Sherman's Mot. to Transfer Venue for Convenience, pp 3--4.
These conclusory statements do not establish the facts they allege, particularly when Sherman agreed with the remaining parties during the management conference on July 24, 2003 that operative facts did occur in Beaumont, Texas. There is some evidence that indicates that conduct leading to this cause of action was directed to a Beaumont post office box. See Def. Sherman's Mot. to Transfer Venue for Convenience, Ex. B. Sherman asserts that this post office box was maintained merely to represent to the Court that the cause of action accrued in Beaumont, Texas. These accusations are supported only by four unauthenticated documents which are, at best, ambiguous as to Plaintiff's address at the time the cause of action accrued. There are no affidavits or deposition testimony to substantiate the accusation. Even liberally construed, there is not a sufficient factual basis to upset the deference ordinarily given to Plaintiff's choice of forum.
*3 There is evidence in the record to establish that at least some of the operative facts in this case took place in Beaumont, Texas. In addition, Plaintiff argues that "[t]he cause of action accrued in this District and many of the damages suffered by plaintiff were incurred in this District." See Pl.'s Response to Def's Mot. to Transfer Venue, pg 5. Given that some evidence, and statements made by all parties during the case management conference, support Plaintiff's representations, this Court finds this factor weighs substantially against transfer.
2. The Convenience of the Parties and Material Witnesses
The convenience of the witnesses is arguably the most important factor in deciding whether a case should be transferred pursuant to § 1404(a). Reed v. Fina Oil & Chemical Co., 995 F.Supp. 705, 714 (E.D.Tex.1998). "Venue is considered convenient in the district or division where the majority of witnesses are located." Mohamed, 90 F.Supp.2d at 775. However, evaluation of the convenience factors "should not rest on a 'battle of numbers' but should be directed by the content and quality, rather than quantity, of their testimony." TV-3, Inc., 28 F.Supp.2d at 411. "[T]he convenience of one key witness may outweigh the convenience of numerous less important witnesses. Moreover, it is the convenience of nonparty witnesses, rather than that of party witnesses, that is the more important factor and is accorded greater weight in a transfer of venue analysis. Regardless 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. The moving party must specifically identify key witnesses and outline the substance of their testimony." Mohamed, 90 F.Supp.2d at 775 (E.D.Tex.2000) (emphasis added).
Sherman has not made more than a general allegation of inconvenience for the party witnesses involved. Attached to Sherman's motion were no affidavits from prospective witnesses claiming that the travel to Beaumont, Texas from Houston, Texas would make them entirely unavailable to testify. There were no statements from Sherman that their defense was now at a significant disadvantage due to the fact a witness refused to travel the approximate 90 miles to testify before this Court. Sherman has failed to carry its burden of proving that the factor of convenience of the witnesses weighs in favor of transfer.
3. Place of the Alleged Wrong
Plaintiff and all Defendants represented to this Court on July 24, 2003 that activities leading to this cause of action occurred in Beaumont, Texas and further the Defendants stated that they do business in Beaumont, Texas and are subject to the personal jurisdiction of this Court. Sherman now states in their motion that the place of the alleged wrong did not occur in Beaumont, Texas. However, Sherman does not provide evidence to support this contradicting representation to the Court. There is not even a proposed alternative location for the alleged wrong doing. Sherman has failed to establish the place of the alleged wrong was not Beaumont, Texas, as such, this is not a factor weighing in favor of venue transfer.
4. The Cost of Obtaining the Attendance of Witnesses and Availability of Compulsory Process
*4 The cost of obtaining the attendance of witnesses was not particularly addressed by Sherman. However, the cost of obtaining attendance of witnesses from approximately 90 miles away is negligible and is not a factor weighing in favor of venue transfer.
5. The Accessibility and Location of Sources of Proof
The accessibility and location of sources of proof weigh only slightly in this Court's transfer analysis, particularly since these factors have been given decreasing emphasis due to advances in copying technology and information storage and the ease of transportation and communication. Mohamed, 90 F.Supp.2d at 778. While there were discussions of the volume of discovery documents that may be involved with this case during the case management conference, very little has been said regarding whether or not this documentary proof will or will not be produced at the time of trial. Sherman has not demonstrated by clear and convincing evidence that it is much more convenient and cost effective to transport documents to the federal courthouse in Houston, Texas rather than to Beaumont, Texas. Accordingly, this factor also does not weigh in favor of transfer to Houston, Texas.
6. The Possibility of Delay and Prejudice if Transfer is Granted
Given the standard scheduling order used by this Court, Sherman has not shown that failing to transfer this case will cause any significant delay or prejudice.

B. Public Interest Factors
1. Administrative Difficulties Caused by Court Congestion
It has not been shown that this matter will proceed at a significantly faster rate in the Southern District of Texas, Houston Division than in Beaumont. No other "administrative difficulties" due to either transfer or retainer in this case have been presented to the Court. In fact, it may be accurate that transferring the case to the Houston Division may cause more administrative difficulty than allowing it to stay in the venue already chosen by the Plaintiff approximately five months ago. Thus, this factor does not weigh in favor of transfer.
2. Local Interest in Adjudicating Local Disputes
Given that some proof in this case indicates that the alleged wrong doing of Defendants took place in Beaumont, there exists a local interest in adjudicating this local dispute. This is particularly true given that all Defendants continue to do business in Beaumont. Therefore, this public interest factor does not support transfer.
3. The Unfairness of Burdening Citizens in an Unrelated Forum with Jury Duty
Because the Court finds that the citizens of the Eastern District of Texas have an interest in adjudicating this suit, it follows that the jury pool in this district will not be unduly burdened in deciding this matter. Consequently, this factor does not weigh in favor of transfer.
4. The Avoidance of Unnecessary Problems in Conflict of Laws
This is not a concern when the two Federal District Courts are not only within approximately 90 miles of each other but also within the same state. As such, this factor neither weighs in favor or against transfer.

ALTERNATIVE MOTION TO DISMISS FOR IMPROPER VENUE
*5 Sherman again seeks a dismissal for improper venue. Sherman's previous motion [Doc. # 13] was denied. Sherman now attempts to raise an issue of whether or not the facts giving rise to the cause of action occurred in Beaumont, Texas, as Plaintiff Cole alleges. Sherman states that Plaintiff only had a post office box in Beaumont and did not actually live in Beaumont. However, no affidavits were submitted to substantiate this claim, nor was an alternative address given for Plaintiff during the time period during which the facts giving rise to this cause of action accrued. The Court finds this line of argument unpersuasive and inadequately supported by facts.

CONCLUSION
It is ORDERED that Sherman's "12(b)(3) Motion to Dismiss for Improper Venue or Motion to Transfer Venue for Convenience and in the Interest of Justice" [Doc. # 33] is DENIED.
SO ORDERED.
E.D.Tex.,2003.
Cole v. Sherman Financial Group LLC
Not Reported in F.Supp.2d, 2003 WL 22976283 (E.D.Tex.)

_________________
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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