Federal Judiciary

Motion to Transfer FELA Case Denied; Motion "filed merely for tactical delay and not for the convenience of any witness or party"

By Michael Smith

Martin v. BNSF Ry. Co., 2007 WL 4333341(E.D.Tex. Dec 10, 2007) (NO. CIV.A. 9:07-CV-154)
Judge: Ron Clark
Holding: Defendant's Motion to Transfer DENIED
This is a FELA (railroad worker injury) case in which BNSF sought a transfer from Lufkin to Amarillo.  Judge Clark denied the motion, writing that "[d]efendant waited four months after filing its answer before filing its motion to transfer. The case is already set for trial on July 14, 2008. An order of transfer would result in a delay of a year or more. Additionally, Plaintiff resides 367 miles from Amarillo in Cleburne, Texas. Plaintiff's surgeon resides 350 miles from Amarillo in Arlington, Texas. Most of the witnesses identified by Defendant as residing in Amarillo are employees of BNSF, which can easily bring them to Lufkin. On balance, the public and private interest factors strongly weigh against transferring this case."
In its cites to In re Volkswagen, this opinion tracks closely the recent patent case which Judge Clark transferred, noting that the FELA has a separate venue statute which affords the plaintiff more discretion than the general venue statute, and finding noteworthy that "the Congress which enacted § 1404(a) refused to enact a bill which would have amended § 6 of FELA by limiting the employee's choice of venue to the place of his injury or to the place of his residence." (citing Pope v. Atlantic Coast Line R.R. Co., 345 U.S. 379, 385 (1953)).  "Driving to Lufkin, Texas from Cleburne, Texas [plaintiff's residence] takes about half the time it would take to drive to Amarillo, Texas. Defendant employs hundreds of employees in the Eastern District of Texas, maintains and operates hundreds of miles of tracks in the Eastern District of Texas, maintains numerous corporate offices and facilities in the Eastern District of Texas, and employs countless managers and supervisory personnel within the Eastern District of Texas."
On the subject of the convenience of witnesses, Judge Clark observed that in contrast to In re Volkswagen, here none of the Amarillo witnesses were eye-witnesses to the accident. In fact, except for physicians, all were Defendants' employees rather than third-parties such as police and paramedics, and it should be easy for BNSF Railway to transport its employees to the Eastern District of Texas. In addition, "[t]reating physician testimony is frequently presented in the form of a deposition rather than live testimony at trial. Moreover, Martin's surgeon is from Arlington, Texas, which is also closer to Lufkin than it is to Amarillo."
In a footnote, Judge Clark stated that "[t]he court will not consider in its analysis the journey over the barren desert of West Texas with its dust devils and sand storms, as compared with the drive through the majestic forests and natural beauty of the Eastern District."  (Ed. note: for those of us who have ridden on trains in both, the difference is well worth considering, no matter what my friends from West Texas say).
Thus given Defendant's "obvious intent to delay the case, it is difficult to ignore the fact that Defendant requested transfer to the courthouse in the Northern District that was the farthest from Plaintiff's home. Given the ease with which Defendant can transport its employees to Fort Worth, it does seem this request to transfer to the Amarillo Division of the Northern District was intended more to inconvenience Plaintiff than to achieve an efficient disposition of the case."  Accordingly, on the whole, Judge Clark concluded that the convenience of witnesses actually weighed against transfer. 
On the factor of the possibility of delay and prejudice if transfer was granted, Judge Clark found that this factor weighed strongly against transfer.  "Defendant argues that it filed its motion to transfer two days before the deadline provided by the Scheduling Order. The court's deadline was set to allow for any discovery that would warrant transfer and not to encourage gamesmanship. Defendant had all the information it needed to file a motion to transfer when it filed its answer. The court finds that the motion to transfer was filed merely for tactical delay and not for the convenience of any witness or party."
In conclusion, Judge Clark wrote that "[t]he public and the court have an interest in the speedy and inexpensive determination of every action. Congressional intent in this regard is expressed in Fed.R.Civ.P. 1 and Fed.R.Evid. 102. Allowing a party, which knows it could ask for a § 1404(a) transfer for convenience, to wait for months until the last possible moment serves only to delay resolution and increase expenses. Clearly expressed Congressional intent in favor of efficient disposition of cases coupled with an equally clear legislative intent to allow an FELA Plaintiff greater latitude in choice of forum weighs heavily against transfer in this case."
No word on what Sir Topham Hatt thinks of all of this.

Full post as published by Eastern District of Texas Federal Court Practice on December 17, 2007 (boomark / email).